The Talis Exchange and Other Lost Stories

Chazal teach us that in the merit of Avraham saying to the king of Sodom that he would not accept even a thread from him, his descendants received the mitzvah of tzitzis.

Question #1: THE TALIS EXCHANGE

Dovid asked me the following shaylah: “I put down my talis in shul and, upon returning, discovered that it had been replaced with a similar-looking talis. I left the talis undisturbed, and hung up a sign noting the exchange. Unfortunately, no one responded, and, indeed, the owner may not even realize that he has my talis. Should I take his talis home? May I use it, or must I purchase a new one and leave his until he claims it, which may never happen?”

Question #2: THE LAUNDRY EXCHANGE

A laundry returned the correct quantity of items that had been brought originally; however, the customer, Reuvein, later realized that one sheet was not his. A different customer, Shimon, picked up his laundry and was missing some items; however the laundry insisted that it had returned whatever was brought. Shimon subsequently discovered that Reuvein had one of Shimon’s missing sheets and he clearly identified his missing sheet. Reuvein claimed that the sheet was a replacement for his sheet that was lost and that he is therefore not required to return it. Must he return the sheet?

Question #3: THE WEDDING EXCHANGE

Someone went to a wedding wearing one coat and mistakenly returned home with a different one. May he use this coat and assume that the other party is agreeable to the exchange? Does this depend on which coat is more valuable?

Question #4: AN UMBRELLA ON THE SUBWAY

On the subway you see a frum, unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

SHO’EL SHELO MIDAAS

The concern in all these situations is that one is using someone else’s property without permission. This is called sho’el shelo midaas, borrowing without the owner’s knowledge, which is usually halachically equivalent to stealing(Bava Metzia 41a; 43b)! In general, one may not use an item until one receives permission from the owner.

CAN’T I JUST ACCEPT THE TRADE OF THE TWO ITEMS?

Since the loser is wearing my talis, why can’t I simply assume that we have traded taleisim; I’ll keep his talis and allow him to keep mine? (Although the correct Hebrew plural is taliyos or talisos, I will use the colloquial taleisim.)

Although Dovid may grant permission to the other person to use his talis,can he assume that he has permission to use the other person’s talis? Let us examine a relevant discussion:

EXCHANGED ITEMS AT THE TAILOR

Someone whose clothes were replaced with someone else’s at a tailor may use what he received until his garment is returned. However, if the exchange transpired at a shiva house or a simcha, he may not use the garment he received but must hold it until the owner claims his property. What is the difference between the two cases? Rav answered: “I was sitting with my uncle, and he explained to me, ‘Sometimes people tell the tailor to sell the item for them’” (Bava Basra 46a).

We see from this case that if I exchanged a coat with someone else at a simcha or at a shiva, I may not wear the coat,since I am “borrowing” it without permission. The fact that the other person is using my garment, knowingly or unknowingly, does not permit me to use his. I may have to purchase a replacement, even though a perfectly nice garment is sitting unused in my closet, since the garment is not mine.

However, if the exchange happened in a tailor shop, I may use the replacement.

WHAT IS THE DIFFERENCE BETWEEN A TAILOR AND A WEDDING?

Why is the tailor shop different? The Gemara presents a rather cryptic answer to this question: “Sometimes people tell the tailor to sell the item for them.” What does this mean?

The early poskim explain that when the exchange transpired in a repair shop, one may assume that the following situation occurred:

Someone brought a garment to the tailor, asking him to sell it for him. The tailor erred and sold your garment instead and then paid the money received (minus his sales commission) to the original owner of that garment. When you came to claim your garment, the tailor realized his error, and also realized that he must compensate you for your item, since he probably has no way to retrieve it. However, he had no cash available,so he gave you a replacement instead – the garment that he was supposed to sell (Tur and Sma, Choshen Mishpat 136:1). Since the tailor already paid the original owner for his garment, he now owns it and he is fully authorized to give it to you as a replacement for your lost garment. This case is referred to as nischalfu keilim beveis ha’uman (items that were exchanged in a craftsman’s shop).

The next passage in the Gemara’s discussion is now almost self-explanatory:

Rav Chiya the son of Rav Nachman explained that the ruling of nischalfu keilim beveis ha’uman applies only if the repairman himself gave you the different garment, but not if his wife or children gave them to you.

Obviously, if the tailor’s wife or child gave you the wrong garment, you cannot assume that this was because of the tailor’s earlier error. It is more likely that they simply mistakenly gave you the wrong garment, which needs to be returned.

Similarly, the following concluding passage of this discussion is clear.

Rav Chiya the son of Rav Nachman continued: The halacha of nischalfu keilim beveis ha’uman applies only if the repairman told you, “Here is a garment.” However if he said “Here is your garment,” we assume that he erred, since he is not giving you your garment.

If the tailor had sold your garment in error and is now sheepishly providing you with a replacement, he would not tell you, here is your garment. Therefore, if he says here is your garment, we assume he must have mistakenly given you the wrong garment, and you must return it.

We see clearly that the ruling of nischalfu keilim beveis ha’uman applies only when I can assume that a tailor or other repairman inadvertently sold or disposed of my item and can legitimately offer me the replacement. Otherwise the situation is comparable to the case of garments exchanged at a simcha, where one may not use the received garment without permission.

At this point we can analyze Question #2.

A laundry returned to Reuvein the same number of items he had brought originally; however, one sheet is not his. Shimon claims to be missing some items, which the laundry denies. Shimon proves that the sheet is his, yet Reuvein claims that the laundry gave it to him as a replacement for what they lost and that he is therefore not required to return it. Must he return the sheet?

Answer: Shimon did not give the sheet to the laundry to sell. Therefore, the laundry gave Shimon’s sheet to Reuven without authorization and he must return it to its rightful owner, even if Reuven has no other way of being compensated for his loss (Terumas Hadeshen #319; one of the interesting and surprising aspects of this shaylah is that this actual case was asked over 600 years ago!!).

The reason for this is obvious: Laundries do not usually act as agents to sell people’s clothing, and in any case, Shimon clearly denies ever making any such arrangement.

SO, WHAT IS THE STATUS OF THE TALIS?

Let us return to our original question. Someone took Dovid’s talis and left behind a similar-looking one. The owner has not responded to any of his notices, and Dovid suspects that he does not even realize that an exchange transpired.

Based on the above discussion, it would seem that Dovid has no choice but to consider purchasing a new talis. However, there is another Gemara discussion that affects our case, so don’t run to the store just yet. Let us examine the following passage:

Shmuel said, “Someone who finds tefillin in the street should estimate their worth and may wear them himself” (Bava Metzia 29b). If the finder has no need for a pair of tefillin, he may sell them and put the money aside for the owner. The Rosh (Bava Metzia 2:16) rules that the finder may even use the money in the interim.

Shmuel’s statement presents some obvious questions:

His ruling seems to contradict the principle that borrowing an item without permission is tantamount to theft. Why can the finder wear (or sell) these tefillin? As we are all aware, one of the Torah’s mitzvos is to return a lost object to its owner (Devorim 22:1-3; Shemos 23:4). How does the Gemara permit the tefillin finder to wear them and not return them to the owner? And even if we correctly assume that “estimating their worth” means that he is responsible to return the value of the tefillin to its owner if and when he locates him, why is this case different from the normal obligation of returning the actual lost item itself to its owner? Obviously, there must be something about tefillin that permits the finder to keep them and simply repay their estimated value.

Some poskim contend that this ruling applies only to a mitzvah object, where the owner wants someone else to use his tefillin rather than have them sit unused (Shach 267:16, in explanation of the Rambam, Hilchos Gezeilah 13:14). However, most authorities imply that this ruling also applies to non-mitzvah items, in cases where the owner is satisfied with simply receiving back their value (see Tur and Shulchan Aruch, Choshen Mishpat 267:21). The basis for this second opinion is the continuation of the Gemara’s discussion:

TEFILLIN VERSUS SEFORIM

The Gemara asks why someone finding tefillin may wear them, since this ruling appears to contradict a statement that someone who found books may not use them, but must hold them for the owner. Why are tefillin different from seforim? The Gemara answers that a person wants to receive back his own books, whereas he can always purchase new tefillin. This implies that people have no strong attachment to any specific pair of tefillin, whereas they have tremendous interest in seforim that are difficult to replace. From this one could infer that there is a difference between finding an item that the owner does not mind replacing and finding an item that he does not want to replace, and this would seem to have ramifications for someone who finds a talis, an umbrella, or some other easy to replace item.

Although this seems to be the obvious point of this Gemara, elsewhere the Gemara seems to rule otherwise. If someone found coins placed in a deliberate fashion, the finder may not spend this money and replace it with other coins, but must hold these very coins and return them to their owner (Bava Metzia 29b). Obviously, the owner is not concerned about receiving back these specific coins, and would be very satisfied with receiving replacement money. Why is it not sufficient to simply return coins of the same value? We see that returning replacement value is not satisfactory, even when the owner does not care.

The answer is that in the case of lost tefillin, two factors must be met before one may use them. In addition to the point mentioned above, another consideration is that someone who finds tefillin must occasionally air them out and ensure that they are kept dry (Rosh, Bava Metzia 2:18). (When a person wears tefillin daily, he automatically airs them out at the same time, which benefits them.) Thus, the owner of the tefillin actually benefits more if the finder sets aside money, since the tefillin will become ruined if no one takes proper care of them. This is qualitatively different from finding lost coins, which require no care other than storing them in a secure place.

We can therefore derive the following principles:

If taking care of a lost item requires some effort, and the owner does not care whether he receives back the original item, the finder may estimate the value of the lost item and plan to repay the owner this amount. Otherwise, the finder should hold the lost item and await the owner’s return.

Having established the rule, let us see which cases fit the rule and which do not. Clothing does not usually fit this rule, since people are interested in receiving back the same garment. A person is comfortable with his own clothes, and often purchasing something to one’s taste is not a simple matter. Therefore, someone finding a lost garment may not sell it and hold the money for the owner.

ARE UMBRELLAS AND TALEISIM LIKE TEFILLIN?

On the other hand, the average person does not develop a personal attachment to his umbrella and is perfectly satisfied to have a usable replacement umbrella. Similarly, a man is usually not that concerned about his specific talis and is satisfied with a replacement. In addition, both of these items are comparable to tefillin and not to coins, since if they are never used they become musty. (Normal use of an umbrella airs it out.) Therefore, someone who locates a lost umbrella may use it after estimating its value.

We are now prepared to answer Question #1 and also Question #4. I will answer Question #4 first: On the subway you see a frum but unfamiliar person rush off the car, forgetting her umbrella. May you keep or use the umbrella, knowing that the owner will soon realize her loss?

Clearly, she will despair of recovering her umbrella as soon as she realizes her loss (yi’ush), and if pick it up after she realizes that she left it on the subway, you are not responsible to return it or its value. Nevertheless, in this subway scenario, you will be picking up the umbrella before she realizes her loss.  In that case,  the umbrella is still the property of the person who lost it and someone picking it up is responsible to return it.

However, a person is usually not concerned about owning a specific umbrella, but is satisfied with money to purchase a replacement. (Indeed, if the umbrella that was lost appears to be a designer umbrella, the halacha will be different.) Therefore, even though the owner still owned the umbrella when you found it, you may claim the umbrella as your own, and simply make a mental note how much it is worth. Should you ever meet its owner and she proves that the umbrella was hers, you must compensate her.

And now our analysis of our opening question, The Talis Exchange

Dovid had put down his talis in shul, and it was replaced by a similar-looking talis. His attempts to alert the owner were unsuccessful, and, indeed, the owner may not even notice the exchange. May Dovid use the other talis or must he purchase a new one?

I believe that most men do not feel attached to their particular taleisim, and this case is therefore comparable to the tefillin case of the Gemara. Assuming this to be true, someone who finds a lost talis may estimate its value and then either wear it or sell it. Either way, he should record the value of the talis and intend to return it to the owner, should the owner ever return for it. When I first published this article, I received several responses disagreeing with me, contending that most people are more possessive of their taleisim than I felt.

PECULIARITIES

The careful reader may have noted that our discussion is heading to an unusual conclusion.Although the Gemara’s rules that the owner is less concerned about retrieving his tefillin than retrieving his seforim, today the opposite is generally true – an owner is usually not concerned about receiving backthe same sefer since one can usually purchase it again in a bookstore. (However, the Gemara’s halacha would remain true if he had written notes in the sefer, or it is a special edition that the owner would not be able to readily replace.)

On the other hand, many people own hand-picked tefillin and want their specific pair back (Minchas Elazar 4:9; see Pischei Choshen, Aveidah 6:ftn23). They may have purchased tefillin whose parshi’os were written by a specific sofer who no longer writes, or made by a specific batim macher who has a long waiting list. After analyzing the principles of the above-mentioned Gemara, the Minchas Elazar decides that the original owner gets his tefillin back. Thus, although the principles of the Gemara are infinite, the specific cases that match them change with society.

Returning lost items is a beautiful and important mitzvah. As we now see, the details of observing this mitzvah are often very complicated – and can vary from item to item.

The Fateful U-Turn

ACT I – THE FATEFUL U-TURN

Location: The highway

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous, since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that, since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there was no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he borrowed it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages, since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car, even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven counters.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car, since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that as a socheir I am not responsible for the damages sustained, as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as explained below.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan, without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control. Put in other terms, a lender who receives no benefits has a right to assume that his item, or its value, is returned to him.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo, and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t Haran #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir, because the damage was caused by negligence!”

Furthermore, you are a sho’eil because giving me a ride to the airport was not an exchange for using the car; it was a chesed that you did for me.

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower with regard to assumption of responsibility.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car, had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value, and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually was. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car, because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir, because he never assumed any responsibility. The first claim seems like an unnecessary step in his defense — let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all damages, even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances).On the other hand, a renter’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A sho’eil is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility, or that he was unaware of the liability, may not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible as the borrower of the car for the following reasoning:

1)      He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2)      As a socheir, he can claim that he never accepted responsibility for the value of the car, because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident, in order to collect the damages from Reuven?

First, we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages, but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalty?

The horse rider refused to pay, contending that he was exempt from damages, since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider, himself, is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalty that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, seventeen hundred years ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is held responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party acting irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable, since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon, in order to complete his Shabbos preparations. Such running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus, if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries, and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shenayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally, he must pay, even if the other party was negligent.

How do we pasken?

The Shulchan Aruch (Choshen Mishpat 378:7) rules like Rashi,whereas the Rema (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving, since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that, therefore, he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages caused to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d-fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved, and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continue his driving career with no further incidents or accidents.

Hunting for Meat

Parshas Re’eih includes the commandment that instructs us how to prepare our meat for our table (Devorim 12:15).

Question #1:

Sheis, the son of Adom Harishon, was traveling one day and realized that he had not packed enough peanut butter sandwiches for the trip. Now hungry, he witnessed a travel accident, which resulted in an animal being killed. Was he permitted to cook the carcass for lunch?

Question #2:

Sheis’s descendant, Linda, lives in the modern era and is Jewish. While traveling in an unfamiliar area, she hunts for kosher meat, discovering some with an unfamiliar supervision, and calls her rabbi to ask whether he recommends it. What factors does he consider in advising her whether to use this product?

Question #3:

In a previous position, I was responsible for researching sources of meat that our local Vaad HaKashrus would accept. I traveled to many cities and visited many meat packing facilities. People have often asked why, sometimes, my hunt resulted in a new acceptable source, and why sometimes it did not. What was I looking for?

Before answering these questions, we need to understand what are the Torah’s requirements for allowable meat.

Upon Noach’s emerging from the teivah (the ark), Hashem speaks to Noach, notifying him that he and his descendants may now eat meat for the very first time. Prior to this time, no one had ever been permitted to sink his teeth into a steak or even a schnitzel (Sanhedrin 59b, based on Bereishis 1:29-30, 9:3; as interpreted by Rambam, Hilchos Melachim 9:1). In actuality, not all authorities agree that Adam and his pre-mabul descendants were required to be vegetarian – some maintain that they were permitted to eat the meat of animals that had already died, and were forbidden only to kill animals for meat (Rashi, Bereishis 1:29and Sanhedrin 57a s.v. limishri basar; Tosafos, Sanhedrin 56b s.v. achal). According to this last opinion, pre-Noach mankind may have eaten sushi, steak or schnitzel, provided that they did not take the animal’s life.

Thus, whether Sheis could barbecue the discovered road kill (Question #1 above) depends upon whether he held like Rashi, in which case he could, or like the Rambam, in which case he could not. According to the Rambam, he was restricted to a vegetarian diet, which included the responsibility to check that his veggies were insect-free. Presumably, he called the local Vaad HaKashrus to determine how to check each type of vegetable. I wonder what he did when he wanted to eat Brussels sprouts!

However, when Noach emerged from the teivah, he and his descendents were permitted to give up their vegetarian lifestyle, provided that they ate no meat that had been removed from an animal while it was still alive (eiver min hachai). Just think —  had Sheis lived after the time of Noach, he could have included some tuna sandwiches in his lunchbox or picked up a salami at the local grocery, instead of going hungry!

When the Torah was given, it both limited the species that a Jew may eat and created many other regulations, including that kosher meat and poultry must be slaughtered in the halachically-approved way (shechitah), and may be eaten only if they are without certain defects that render them tereifah. Even after ascertaining that the animal, itself, may be eaten, one must still remove the blood, certain fats called cheilev, and the sciatic nerve (the gid hanasheh). These last two prohibitions do not apply to fowl.

In the contemporary world, guaranteeing that one’s meat is appropriate for the Jewish table involves several trained and G-d-fearing people, including shochatim, bod’kim, menakerim, mashgichim, and knowledgeable rabbonim to oversee the entire process.

THE SHOCHEIT’S JOB

Aside from the shocheit’s obvious responsibility to slaughter the animal the way Hashem commanded, he must also fulfill another very important task: following the slaughtering, he must verify that he performed the shechitah correctly. This is a vitally important step; without this inspection, the animal or bird must be considered non-kosher – it will be acceptable for the table of Bnei Noach, but not for Klal Yisroel.

Next, the animal or bird is examined to ensure that it is not tereifah. Although common use of the word “treif” means something that is non-kosher, for any reason whatsoever, the technical meaning of the word refers to an animal with a physical defect that renders it non-kosher, even if it was the beneficiary of a proper shechitah.

THE BODEIK

In a meat packing plant (beef, veal or lamb), the individual accountable to check for these defects is called a bodeik (pl. bod’kim). Most bod’kim are trained shochatim, and, indeed, in most plants, the bod’kim and shochatim rotate their tasks, thus making it easier for them to be as attentive as the post requires. As a result, a person licensed both as a shocheit and as a bodeik is usually called a shocheit, although, technically, he should be called a shocheit ubodeik, to truly reflect the extent of his training.

THE SECOND BODEIK

The responsibility to check for tereifos is divided between two bod’kim. The first, the bodeik penim, checks the lungs in situ, which is the only way one can properly check that the lungs do not adhere to the ribs, to the membrane surrounding the heart (the pericardium), or to themselves in an improper way, all of which render the animal non-kosher. This checking is performed completely based on feel. The bodeik gently inserts his hand, and runs his fingers carefully over all eight sections of the lung, to see if he feels any adhesion between the lung and one of the other areas.

The second bodeik, the bodeik chutz, rechecks the lungs and makes a cursory check of other organs, upon their removal from the carcass, particularly the stomachs and intestines, for swallowed nails and for various imperfections that render the animal non-kosher.

After the two bod’kim are satisfied that the animal is kosher, the second bodeik or a mashgiach tags the different parts of the animal as kosher with lead or plastic seals. Longstanding practice is that, in addition, the bodeik or a mashgiach makes small slits between the ribs that identify the day and parsha of the week, to mark the piece as kosher. A mark made when the meat is this fresh appears completely different from one made even a few hours later, making it difficult to counterfeit. Of course, this mark is not, alone, used to verify that the meat is kosher, but it is an essential crosscheck, since the old-styled tags can be tampered with.

The modern kosher poultry plant is organized slightly differently: The shochatim perform shechitah only, whereas the bedikah inspection is performed by mashgichim trained to notice abnormalities. If they notice any, they remove the bird from the production line; a rav or bodeik then rules whether these birds are kosher.

For both animals and birds, one needs to check only for commonly occurring tereifos, but not for uncommon problems. For example, the established halachic practice of over a thousand years is to check an animal’s lungs, because of their high rate of tereifos, and today it is common practice in Israel to check legs. Animal lungs frequently have adhesions called sirchos, which render them non-kosher (Chullin 46b), although Ashkenazic custom is that easily removed adhesions on mature cattle do not render them treif (Rosh, Chullin 3:14; Rema, Yoreh Deah 39:13). An animal without any sircha adhesions is called glatt kosher, meaning that its lung is completely smooth – that is, without any adhesions, even of the easily removable variety.

The rav hamachishir’s responsibilities include deciding which problems are prevalent enough to require scrutiny and what is considered an adequate method of inspection.

Depending on the factory, the next steps in the preparation of beef, veal or lamb are occasionally performed in the same facility where the shechitah was performed, or alternatively, they are performed at the butcher shop.

TRABERING

Prior to soaking and salting meat to remove the blood, certain non-kosher parts of the animal, including the gid hanasheh (the sciatic nerve), non-kosher fats called “cheilev,” and certain large blood vessels, must be removed (Yoreh Deah 65:1). The Hebrew word for this process is “nikur,” excising, and the artisan who possesses the skill to properly perform it is called a menakeir (pl. menak’rim). The Yiddish word for this process is traberen,which derives from tarba, the Aramaic word for cheilev, the non-kosher fat. This step is omitted in the production of poultry, since it is exempt from the prohibitions of gid hanasheh and cheilev, and its blood vessels are small enough that it is sufficient to puncture them prior to the soaking and salting procedures.

Early in its butchering, a side of beef (which is half its carcass) is divided into its forequarter and hindquarter. Since the gid hanasheh and most of the cheilev are located in the hindquarter, trabering it is a tedious process that requires a highly skilled menakeir. (On RabbiKaganoff.com, there is an article on the history and halachic issues germane to this practice.) The forequarters must still be trabered prior to soaking and salting, to remove blood vessels and some fat (Rema, Yoreh Deah 64:1; Pischei Teshuvah 64:3). Although trabering is a relatively easy skill to learn, Linda’s rabbi might need to check whether the hechsher can be trusted that this was done properly, as the following story indicates.

I once investigated the kashrus of a certain well-known resort hotel, one not usually frequented by frum clientele. I called the hotel and asked who provided their hechsher, and was soon on the telephone with both the resident mashgiach and the rav hamachshir.

I began by introducing myself and the reason for my phone call, and then asked about the sources of the meat used in the hotel. In the course of the conversation, it became evident that neither the rabbi nor the mashgiach knew the slightest thing about traberen, although they were officially overseeing a staff of in-house butchers, none of whom was an observant Jew. I realized that the rather poor kashrus reputation of this establishment was, indeed, well deserved. The rabbi overseeing the hechsher, himself, did not know trabering, nor did he have any halachically reliable supervisor. What was he overseeing?

SOAKING AND SALTING

Returning to our brief overview of the proper preparations for kosher meat:  After the meat has been properly trabered, it is ready to be soaked and salted to remove its blood. In earlier generations, this process, usually called kashering meat, was performed exclusively at home, but today, common practice is that this is performed either by the butcher or at the meat packer. Almost all kosher poultry operations today soak and salt the meat immediately after shechitah, and it is becoming increasingly more common in beef operations.

To kasher meat, it should be rinsed well, soaked in water for half an hour, drained, salted for an hour, and then rinsed three times (Rema, Yoreh Deah 69:1, 5, 7). The halacha requires that the meat be covered with salt on all exposed surfaces (Yoreh Deah 69:4). Most packing plants do this job appropriately, although I have seen places where the salting was inadequate; entire areas of the meat were not salted. This is, probably, simple negligence; although when I called this problem to the attention of the mashgiach, he insisted that it was performed adequately, notwithstanding my observing the contrary. Needless to say, I did not approve this source.

WASHED MEAT

The Geonim instituted a requirement that meat be soaked and salted within 72 hours of its slaughter (Yoreh Deah 69:12). This is because of concern that once 72 hours have passed, the blood becomes hardened inside the meat, and salting no longer removes it. If more than 72 hours passed without the meat being salted, the Geonim ruled that if the meat is broiled, it may be eaten, since this process will still remove the blood, even though salting will not (Yoreh Deah 69:12).

A question that developed with time was whether wetting the meat prevents the blood from hardening inside. Some early authorities permitted soaking meat to extend the 72-hour period (Shach 69:53). However, this leniency often led to highly liberal interpretations. I have seen butchers take a damp rag and wipe the outside of the meat and considered it washed. Thus, there are two different reasons why most reliable kashrus operations do not allow the use of “washed meat,” either because they do not accept this lenience, altogether, or because of concern that once one accepts hosed meat, it becomes difficult to control what type of washing is acceptable.

THE RAV HAMACHSHIR

Thus far, I have described the tremendous responsibilities of most of the staff necessary to guarantee that the meat is of the highest kashrus standards. One person that I have not adequately discussed is the rav hamachshir, the supervising rabbi, who has the final say on the kashrus standards that the meat packer and butcher follow. Although a rav overseeing meat kashrus does not necessarily have to be a shocheit or trained menakeir himself, he certainly must be proficient in all of these areas, both in terms of thorough knowledge of halacha and in terms of practical experience. For most of Jewish history, the most basic requirement of every rav demanded that he be proficient in all the halachos of kosher meat production. As the local rav, his responsibility included all shechitah and bedikah in his town.

However, in the contemporary world of mass production and shipping, the local shul rav is rarely involved in the details of shechitah, and often has limited experience and training in these areas. Depending on the semicha program he attended, he may not have been required to study the laws of shechitah and tereifos. Thus, what was once the province of every rav has now become a specialty area, and, sometimes, rabbonim involved in the giving of meat hechsherim lack the proper training.

I was once given a tour of a meat packing plant by the supervising rabbi of the plant. During the course of the tour, I became painfully aware of the rabbi’s incompetence in this area of kashrus. For example, he was clearly unaware of how to check shechitah knives properly, certainly a basic skill necessary to oversee this type of hechsher. Would you approve this meat supplier for your local Vaad HaKashrus?

At this point, I want to address the third question I raised above: Sometimes, my visit to a meat packer resulted in a new, acceptable source, and sometimes it did not. What was I looking for, and why would I disapprove a source that a different rav was approving?

The answers to these questions are sometimes subjective, but I will provide you with some observations of mine.

IS THE SYSTEM WORKABLE?

There are many subtle and not-so-subtle observations that a rav makes when examining a meat packer. I could not possibly list in one article all the types of problems I have seen, but I will mention certain specific concerns to which I would always be attentive.

Is the production line too quick for the shocheit or mashgiach to do his job properly? Are the shochatim or mashgichim expected to perform their job in an unrealistic manner, either because of a shortage of trained manpower or because of the speed or organization of the production line?

QUALITY OF PERSONNEL

Are the shochatim knowledgeable? Do they appear to be G-d fearing individuals? Although it is impossible to know whether someone is, indeed, a yarei shamayim, it is unfortunately often very obvious that he is not. It can happen that one rav has questions about the staff, and for this reason, he does not approve a source of supply.

I will give you an example of this. While visiting a plant to determine whether we should allow this shechitah, we heard a conversation in which one of the shochatim showed a shortcoming in tzeniyus within his family. Although one could point to a specific law that disqualifies him as a shocheit, I, personally, was uncomfortable with entrusting him with decisions that would affect what I eat. After discussion with the other rabbonim in our community, we decided not to accept meat from this shechitah.

Does this mean that we considered this meat non-kosher? G-d forbid. It simply means that we were uncomfortable allowing it, and decided that we have that responsibility as rabbonim of our community.

Thus, it could indeed happen that what one rav considers acceptable, another rav feels is not. The differences may be based on the interpretation of halacha, or they may result from a rav’s inclination as to how a plant should be run.

CONCLUSION

Based on the above information, we can better understand many aspects of the preparation of kosher meat and why it is important to use only meat that has a proper hechsher. We can also gain a greater appreciation of how hard rabbonim and shochatim work to maintain a high kashrus standard. Now that we recognize the complexity involved in maintaining kosher meat standards, we should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

Honor the Elderly!

In the aseres hadibros, honoring parents features significantly, thus, we will discuss:

Question #1: Respect your elders?!

“Am I required to stand up anytime I see a senior citizen walking down the street?”

Question #2: Age before wisdom?!

“I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

Question #3: Elder older?

“Does one older person need to stand up for another older person?”

Introduction

In parshas Kedoshim, the Torah teaches that there is a mitzvah to stand up before an older person and to treat a “zakein” with respect. The words of the posuk are: Mipnei seivah takum vehadarta penei zakein, “you should stand up for an older person and treat an ‘elder’ with respect” (Vayikra 19:32).

To begin with, we will raise several additional questions: How old does the person need to be to qualify as being “older”? Does it make a difference if it is an older man or an older woman? For how long must I remain standing? Is there any difference between someone who is “older,” in lashon kodesh, seivah, and someone who is an “elder,” which is the way I translated the word zakein? Is a demonstration of respect required, regardless of how religiously observant the older person is?

Elder or older?

I was very deliberate to translate the word zakein as “elder.” Indeed, the lashon kodesh word zakein, and the English word elder, carry the same two different meanings. The word zakein can mean an older person, but it can also mean a scholar, or someone who is respected for his sage advice and leadership qualities. Both meanings are similarly included in the English word “elder,” but not necessarily in the word “older.” Thus, the expression, “respect your elders,” does not have to refer to someone older than you are, since there can be a young elder, but it is difficult to have a young older.

The Gemara (Kiddushin 32b) presents a three-way dispute as to what type of older person, or “zakein,” is included in the mitzvah. According to the tanna kamma, the mitzvah applies only to someone who is both a Torah scholar and elderly. In his opinion, there is no requirement to stand up for a profound Torah scholar who is young. Rabbi Yosi Hagelili disagrees, contending that there is a mitzvah to rise and show respect both to an older person who is not a profound scholar, as long as he knows some Torah, and to a Torah scholar, even if he is young. A third tanna, Isi ben Yehudah, rules that there is a requirement to stand up for any Torah scholar and for an older person, provided the older person is basically Torah observant. (This reflects the opinion of Rabbeinu Tam, which is the approach accepted by the halachic authorities. According to Rashi, Isi ben Yehudah requires standing up for an older person, even if he is willingly non-observant, and even if he is a rosho.)

The Gemara (Kiddushin 32b-33a) concludes that the halacha follows the third tanna, Isi ben Yehudah, which is accepted by the halachic authorities. Thus, there is a requirement to stand up for an older person, if he is halachically observant, even if he is not a scholar.

The Rambam’s conclusion is that a young talmid chochom should demonstrate honor to someone elderly, even if the older person is not a talmid chochom. This means that he is required to rise slightly to demonstrate honor, but he is not required to stand up fully (Hilchos Talmud Torah 6:9, as explained by Tur Yoreh Deah 244 and later authorities). The poskim refer to this demonstration of honor as hiddur.

There is a minority opinion that no one is required to stand up fully before an older person who is not a Torah scholar, and that it is sufficient to rise slightly (hiddur), as a show of honor (Shu”t Binyamin Ze’ev #243; see Aruch Hashulchan, Yoreh Deah 244:10). However, the Tur (Yoreh Deah 244) and most later authorities do not accept this approach. They conclude that it is a mitzvas aseih min haTorah for anyone but a talmid chochom to stand up for an older person.

Why is a talmid chochom exempt?

This sounds strange! Where else do we have a mitzvah that applies to everyone but a talmid chochom? The answer is that the Torah’s mitzvah is to show respect to Torah scholars and to elderly people who are Torah observant. Of the two categories, a Torah scholar deserves greater respect. If a talmid chochom were obligated to stand up for a non-educated elderly person, this would mean that the Torah is respecting age before wisdom. In fact, the Torah respects Torah wisdom before age.

Nevertheless, the “young” talmid chochom should rise slightly to demonstrate his respect for the older person. Since rising slightly, without standing up completely, is not a tircha, this is not considered showing disrespect to the Torah that the young talmid chochom represents.

Age before wisdom?!

At this point, let us address the second of our opening questions: “I give a daf yomi shiur. Many of those who attend are old enough to be my grandfather. Am I required to stand up for them when they arrive at the shiur?”

In other words, is there a requirement for the rebbi to stand up for his talmid who qualifies as a seivah? This question is discussed by several acharonim. The work She’eiris Yaakov,by Rav Yisroel Yaakov Algazi, is quoted as ruling that the rebbi is required to stand up for his talmid, the seivah. However, the commentary Leiv Meivin, by Rav Bechor Yitzchak Navardo, a nineteenth-century, Turkish posek, proves that the rebbi is required to stand up for his talmid only when the seivah himself is a talmid chochom and only when the rebbi is not obviously a much greater scholar than the seivah (Hilchos Talmud Torah 6:9). In other words, the only time a rebbi is required to demonstrate honor to an older person who is his talmid is when they are both talmidei chochomim of approximately similar stature, such that the younger talmid chochom is not obviously a much greater scholar than the older one. Thus, whether our daf yomi maggid shiur is required to stand up for the golden-aged attendees of his shiur is a dispute between the She’eiris Yaakov and the Leiv Meivin.

An older woman

Is there a mitzvah to stand up for an older woman?

The Sefer Chassidim (#578) rules that there is. Presumably, he is referring to a woman who is halachically observant, even if she is not very knowledgeable about halacha. There are halachic authorities who may disagree with the ruling of the Sefer Chassidim (see Halachos Ketanos 1:154; Shu”t Beis Yehudah, Yoreh Deah #28; Birkei Yosef, Choshen Mishpat 17:5; Bris Olam #578).

Two elderlies

Is an elderly person required to rise for another elderly person?

The Tur suggests that two talmidei chachomim or two elderly people should show respect (hiddur) for one another, although they are not required to stand up fully. This approach is codified by the Shulchan Aruch (Yoreh Deah 244:8). Some authorities explain that this is only when the two are of approximately equal stature as talmidei chachomim. However, if one of the talmidei chachomim is a greater talmid chochom than the other, the “lesser” talmid chochom is required to stand up for his more learned colleague (Leiv Meivin).

How old?

For how old a person are you required to stand up?

In the context of this mitzvah, the halachic authorities mention what appear to be three different ages.

1. The Rambam (Hilchos Talmud Torah 6:9) says that the mitzvah applies to someone “pronouncedly old,” which does not appear to have an obvious, objective criterion.

2. Based on the words of the Mishnah in Pirkei Avos (end of Chapter 5), ben shiv’im le’seivah, the Tur and the Shulchan Aruch rule that these laws apply to a person of the age of 70.

3. The Arizal is quoted as being strict to observe this mitzvah for people who have reached the age of 60 (Birkei Yosef, Yoreh Deah 244:4).

However, the Tur explains that the Rambam’s term “pronouncedly old” means 70, and that he is not disputing the Rambam in this matter.

In addition, there are various interpretations why the Arizal applied this mitzvah to someone who achieved the age of 60. Most conclude that the Arizal agrees with the ruling of the Shulchan Aruch, but that he had a personal chumrah, which was not halachically required, to stand up for a person once the honoree turned 60. Therefore, most rule that even those who follow kabbalistic practices are required to rise only for someone who is 70 years old (Birkei Yosef, Yoreh Deah 244:1; Leiv Meivin).

The halachic conclusion follows the opinion of the Tur and the Shulchan Aruch, ruling that the requirement to stand up for an older person applies only when the older person is at least 70 years old. This halacha holds true today, notwithstanding that 70 is no longer considered advanced in age.

An older person may be mocheil on his honor, and someone who knows that a particular person really does not want people to stand up for him should follow the older person’s wishes. Disregarding his personal desire is not demonstrating respect.

No respect

There is no requirement to rise and show respect when you are in a place where demonstrating respect is inappropriate, such as a bathhouse or bathroom.

When do you stand?

The requirement to stand up for a talmid chochom or an older person applies only when he is within four amos, approximately seven feet, of where you are. There are exceptions to this rule. There is a requirement to stand up for the person who taught you most of the Torah that you know, called your rebbi muvhak. In this case, you are required to stand up once your see the rebbi walking by, even at a distance (Aruch Hashulchan, Yoreh Deah 244:13).

Why four amos?

If you stand up when the talmid chochom or the older person is within your four amos, it is apparent that the reason you stood up is to honor him.

Don’t lose work time

There is an interesting halachic ruling, that there is no requirement to rise and show respect when a person will lose work time as a result. Therefore, a self-employed person is not required to stand up, should he be working when an elderly person comes by, and a worker in the employ of someone else is not permitted to rise while he is working, since he is taking away from the time he owes his employer. In other words, an employee is not permitted to be machmir and stand up when it costs money to a third party. Although one can argue that, in today’s business environment which accepts reasonable coffee breaks and other occasional, brief interruptions, it is permitted for an employee to stand up to show respect for a talmid chochom, we learn a very important lesson how halacha views the responsibility of an employee to his employer. This discussion will be left for a different, future article.

Standing up while learning Torah

The halacha is that someone in the middle of studying Torah is required to stand up for a talmid chochom or for an elderly person (when the halacha requires, as explained above). This is because of a general rule that performing mitzvos of the Torah pushes aside studying Torah.

Transported

What is the halacha, if the elderly person is being carried or wheeled in a wheelchair? Is there still a responsibility to rise when he passes within four amos? The answer is that there is a responsibility to rise when the elderly person passes by, regardless as to whether he is walking or being transported (see Kiddushin 33b). Therefore, it is required to stand up when an older person passes you while he is being pushed in a wheelchair.

As I mentioned above, you are required to stand up for an elderly person, once he is within four amos of where you are. There is a dispute among authorities whether you may sit down as soon as the scholar, or elderly person, passes by, or whether you should wait to sit down until he has passed beyond your four amos (Birkei Yosef, Yoreh Deah 244:12; Aruch Hashulchan, Yoreh Deah 244:13).

At this point, we can address our opening question:

“Am I required to stand up anytime I see a senior citizen walking down the street?”

The answer is that if he is over seventy years old (or appears to be), observes halacha, and you are not busy earning a living, you are required to stand up for him, once he is within your four amos.

In shul or while davening?

Is there a mitzvah to stand up for a talmid chochom or an elderly person when you are in the middle of davening? There is an authority who contends that since you are in the middle of showing respect to Hashem, you should not, then, show respect for a human, who is, himself, required to show respect to Hashem (quoted by Birkei Yosef, Yoreh Deah 244:1). However, the other halachic authorities disagree, contending that fulfilling Hashem’s mitzvah is showing respect to Hashem, and, therefore, should be observed while you are davening (see Birkei Yosef ad locum and Shu”t Radbaz that he quotes).

Your whole house

The Birkei Yosef raises the following question: In general, halacha considers your entire house to be one area of four amos. This has many halachic ramifications. For example, upon awaking in the morning most people wash their hands somewhere in the house, without being careful that they walk less than four amos before doing so.

The question he raises is whether we consider the entire house to be four amos germane to standing up for an older person. If we do, that would mean that whenever you are indoors and you see an older person walking around or being transported in the same house, you are required to remain standing up for him until he reaches his destination, even if he never comes within your four amos!

The halachic authorities conclude that there is no difference between being inside or being outside – in either instance, you are not required to stand until the older person is within your four amos. This is because the point of four amos germane to this mitzvah is that a greater distance away is not apparent that you are standing to demonstrate honor. This is true whether you are indoors or outdoors, and, therefore, there is no requirement to stand up indoors for an older person until he is within your four amos (Birkei Yosef, Yoreh Deah 244:5).

Discordant scholar

The Aruch Hashulchan (Yoreh Deah 244:13) rules that there is no requirement to stand up to show respect for a Torah scholar who creates disputes that are not for the sake of Heaven. This ruling would also apply to an elderly person who creates disputes that are not lesheim shamayim. Even if he meets the age requirement and is observant, if he is a baal machlokess, there is no mitzvah to rise for him.

Can’t see

Does the mitzvah to stand up for a talmid chochom or an elderly person apply when the honoree will be unaware that you did so, such as, if he cannot see? The She’eilos Uteshuvos Halachos Ketanos (1:154) rules that you are not required to stand up for an older person who cannot see that you did so (quoted by Shearim Hametzuyanim Behalacha 144:5). However, many other authorities dispute this conclusion (Birkei Yosef, Yoreh Deah 244:2).

Conclusion

When the posuk (Bereishis 24:1) mentions that Avraham Avinu got older, it uses the expression, ba bayamim, “he came with his days,” the first time this expression occurs in Chumash, even though many people had lived much longer than Avraham. The Gemara explains that this was the first instance of a person looking like an old man. Most people are sensitive about looking older, but the Midrash writes that Avraham Avinu asked to look elderly, so that people would know to treat him with respect! As the Gemara expresses it, “Until the time of Avraham, there was no concept in the world of people looking old. Someone who wanted to talk to Avraham, would (by mistake) go to Yitzchok, since they looked so similar, and vice versa. Avraham then prayed to Hashem, and the concept of appearing elderly began for the first time in history” (Bava Metzia 87a). The Bereishis Rabbah adds, “Avraham requested to look old. He said to Hashem, ‘Creator of all worlds, a man and his son can arrive in a place, and no one knows which of them to honor. If you crown him with the appearance of being elderly, people know whom to honor!’ Hashem answered him. ‘You requested it; it will begin with you.’ From the beginning of the Torah, until Avraham, there is no mention of anyone getting old” (Bereishis Rabbah 65:9).

Avraham Avinu’s outlook should serve as a wise counterbalance to modern society’s adulation and adoration of youth. This approach makes aging something to dread, rather than something deserving of respect. Instead, Avraham Avinu referred to signs of advanced age as a well-earned “crown.”

My Vows I Shall Fulfill #2

Question #1: Can performing a mitzvah be a liability?

Question #2: What is hataras nedarim?

Question #3: How does Kol Nidrei work?

Question #4:

Yankel asked me the following question: “When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Answer:

This week we will continue last week’s article on the topic of vows, oaths, and pledges. As we mentioned there, someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, he now has a Torah obligation to observe something that he is otherwise not required to do. We also discovered that, for reasons discussed in last week’s article, one should be careful not to make vows or pledges. Here is a review of the six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something:

(1) Nedarimvows

(2) Shevuosoaths

(3) Kabbalas mitzvah, declaring that one will perform a good deed

(4) Pledges to tzedakah, intending to donate charity

(5) Stringencies – performing a halachic chumra

(6) Doing something three times

The details of how these various activities become halachic responsibilities vary from category to category, and the outline of these rules was discussed in last week’s article. There we were taught that to avoid creating these commitments, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation. Similarly, someone who begins practicing a halachic hiddur should say, or at least think, that he is not accepting it as an obligation.

In addition, we presented last week how to release ourselves from vows and pledges via aprocess called hataras nedarim, which removes the continuing obligation to fulfill the vow. We noted that someone who violated his vow prior to performing hataras nedarim has sinned and is required to perform teshuvah for his or her infraction. In the case of a pledge to tzedakah¸ there is an additional requirement to pay it as soon as possible; otherwise, someone might violate the prohibition of bal te’acheir leshalmo – “Do not delay paying it” (Devarim 23:22).

If one contemplates making a vow or an oath, at what point has an oath been created? In most instances, thinking about making an oath or vow, or even deciding to do so without expressing it, does not create an oath. The vow or oath is created only by enunciating it.

If someone states the words of an oath or vow, but has no intention to accept an obligation upon himself, no oath or vow has been created. This is referred to by the Gemara as piv velibo shavim – his mouth and his heart are equal. In other words, his intent and his statement are both required in order to create an oath or vow. If he did not intend to create an oath or vow, the words alone do not create one because libo, his heart, meaning, his intention, was not to make an oath or vow.

What is the halacha if he wanted to make an oath or vow and began expressing it, but said something that is not a correct formula for either an oath or a vow? The halacha is that there are times when this is not a valid oath or vow, because what he said is insufficient to qualify, and there are other times when it is valid. Although the details are more complex than we will deal with in this article, we will discuss two instances in which the oath or vow is valid and must be kept.

  1. Yad nedarim – when the statement is incomplete. The word yad means a hand, but also can mean a handle. In this instance, it means that, although the vow was not fully expressed, enough of it was said to understand the person’s intent. He provided a “handle” with which the verbalization of the vow can be “held.” For example, if someone declared muderani mimcha, “I vow from you,” the person who states this is prohibited to talk to the other person until he has hataras nedarim performed (see Shulchan Aruch, Yoreh Deah 206:1).
  2. Nickname nedarim – when the neder is expressed in a colloquial fashion. The words themselves are not meaningful, but colloquially this is understood to be a neder. The halachic term used in the Mishnah for these nedarim is kinuyim, which means a nickname (Nedarim 2a). An example of this is someone declaring, “This loaf of bread is konam to me,” who is now prohibited to eat the loaf of bread.

The Gemara quotes a dispute between early amora’im why kinuyim are valid. According to one amora, this was an attempt by non-Jews to imitate Hebrew, but because of their native accents, the words ended up sounding very strange. Nevertheless, once these words became accepted to mean what was intended, they will now create an oath or vow. In other words, language in general is what people mean and is conventionally accepted. Every spoken language is constantly in flux, and, as people use the language, dialects and colloquialisms develop. These are all acceptable uses of the language. For our halachic purposes, these peculiar usages for expressions, such as “oath,” “vow” and the like, are considered part of the language – and, therefore, the oath or vow was stated. According to this approach, the word konam was originally a slang word of non-Jews meaning korban.

The other approach of the Gemara explains that the terms called kiyunim by the Mishnah were deliberate creations of Chazal. Chazal realized that since the posuk refers to a korban laShem, the most common way someone will refer to a vow not to use an item will be to say, “this item is a korban for G-d,” meaning that the item may not be used just as a korban may not be used. When doing so, the person may use Hashem’s name as we express it in Hebrew. Although halachically doing this it is not considered taking Hashem’s name in vain, it can easily lead to someone using Hashem’s name inappropriately and violating the Torah prohibition of lo sisa es sheim Hashem Elokecha lashav (Shemos 20:7). In order to avoid and discourage this, Chazal instituted a different nomenclature, specifically for the purpose of oaths and vows, whose purpose is to discourage people from using Hashem’s name without purpose.

According to both approaches that I have presented, the statement, “This loaf of bread is konam to me”means that he has made a vow that the loaf of bread is prohibited for him to eat, just as he is prohibited from eating a korban.

May I appoint an agent to perform hataras nedarim for me?

No, one must ask the beis din directly to release himself from vows (Shulchan Aruch, Yoreh Deah 228:16). If the members of the beis din do not understand the language that the nodeir speaks, they may use an interpreter to facilitate communication (Rema ad loc.).

There is one instance in which someone may make another person an agent to release nedarim. Sometimes, a husband may act as an agent for his wife to annul her nedarim. If a husband finds three people already gathered together – for example, they were performing hataras nedarim for him or for someone else – he may act as his wife’s agent to ask them to release her neder at the same time, if she appointed him to do so (Shulchan Aruch, Yoreh Deah 234:56). However, he may not gather three people together to become a beis din for the purpose of hataras nedarim.

How does a woman perform hataras nedarim?

A woman who has a specific oath, vow, or practice from which she wishes release should arrange to perform hataras nedarim with a talmid chacham or beis din. As mentioned above, if she is married, she may ask her husband to be her agent to perform hataras nedarim, according to the instructions I wrote above (Shulchan Aruch, Yoreh Deah 234:56).

Hataras nedarim on erev Rosh Hashanah

At this point, we can address Yankel’s question:

“When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”

Indeed, Yankel’s question is valid: hataras nedarim requires mentioning specifically the vow that one desires to release, and the beis din must deliberate whether this particular neder can be revoked. Thus, it is unclear whether the generic hataras nedarim recited on Erev Rosh Hashanah, indeed, releases one from any commitments. The proper thing to do is to mention to an appropriate beis din every specific neder or practice for which one seeks annulment. What, then, is the purpose of hataras nedarim on Erev Rosh Hashanah.

Mesiras moda’ah

The Gemara mentions that a declaration at the beginning of the year that all vows one will make in the course of the year are invalid has some value. This declaration is called a mesiras moda’ah.The Gemara concludes that this statement has only limited value, and one should not intentionally rely upon it. In point of fact, the standard hataras nedarim procedure performed on Erev Rosh Hashanah includes a mesiras moda’ah.

Kol Nidrei

The rishonim dispute whether the purpose of Kol Nidrei that we recite at the beginning of our Yom Kippur service is also meant to be a form of hataras nedarim, performed at a time when virtually everyone is in shul to include the maximum number of people, or whether it is a mesiras modaah. It is for this reason that there are three different versions of the text: one that has Kol Nidrei refer to the past year’s declarations, which means that it is hataras nedarim; one that refers to the coming year’s declarations, which means that it is a mesiras modaah; and one that mentions both the past and the future years, which means that it is meant to accomplish both. From my experience, most congregations today follow the third approach.

There is another interesting difference in halachic practice that results from this last dispute: Should the congregation recite Kol Nidrei together with the chazzan? If it is a mesiras modaah, then one must declare it oneself, and each individual should read the Kol Nidrei together with the chazzan. On the other hand, if it is a form of hataras nedarim, then it should be declared by the chazzan, alone, accompanied by the two honored men alongside him who hold the sifrei Torah, so that they form a beis din that is annulling everyone’s nedarim. The Mishnah Berurah (619: 2) rules that we should consider it a mesiras modaah, and therefore concludes that each individual should recite Kol Nidrei softly along with the chazzan.

Conclusion

Now that we realize how serious our speech can be, we should reflect not only on the ideas of nedarim, but also on all the ramifications of our speech. As the pasuk (Mishlei 18:21) states, Ma’vess ve’chayim be’yad lashon – Life and death are controlled by our tongues!

My Vows I Shall Fulfill

Question #1: Quiz question

Can performing a mitzvah become a liability?

Question #2: Is this a “klutz question?”

What does it mean that I am doing something “bli neder”?

Question #3: A frum question

“My friend Billy Nader says bli neder on almost everything. Is this being too frum?

Answer:

What is a neder?

It is rather obvious why we are studying this topic this week – since Parshas Matos begins with the laws pertaining to vows.

Someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, one creates a Torah obligation that he is otherwise not required to observe. For example, someone who declares that he will begin studying daf yomi every day is now obligated to do so, even on a day when it is inconvenient. Similarly, one who pledges tzedakah at yizkor or pledges a contribution to a shul upon receiving an aliyah becomes fully obligated, min haTorah, to pay the donation. In the case of a pledge to tzedakah¸ one must redeem it as soon as practical; otherwise, he risks violating an additional prohibition, bal te’acheir leshalmo, “Do not delay paying it” (see Devarim 23:22).

In general, one should be careful not to make vows or pledges. For one thing, one who does so has now created a stumbling block for himself, since he runs the risk that he will not observe his commitment (see Nedarim 20a, 22a). Furthermore, he has created an accusation against himself, for by committing to observe something that the Torah did not require, he implies that he is so skilled at observing mitzvos that he can add a few of his own. The satan can now level accusations against his occasional laxities in a much stronger fashion (see Nedarim 22a, based on Mishlei 20:25). (There are a few circumstances in which one is encouraged to make vows, but we will leave that topic for a different time.) For this reason, it is better not to pledge to contribute to tzedakah: if you have the money available, donate it; if it is not currently available, don’t pledge it! (Shulchan Aruch, Yoreh Deah 203:4). It is very important that gaba’im be in the habit of declaring that people’s pledges are bli neder, and a similar wording should appear on pledge cards.

Different types of obligations

There are six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something.

(1) Nedarim – vows

A neder – a vow, in which one declares that something otherwise permitted is now prohibited – such as declaring that certain foods are prohibited.

Example:

In her desire to keep to her diet, Yaffah states: “I am going to prohibit all chocolate on myself.” Yaffah has now created a neder, which prohibits her, min haTorah, from eating chocolate.

(2) Shevuos – oaths

A shevuah – an oath, in which one swears to fulfill or refrain from some activity – such as swearing that one will fast on a certain day, or that one will say Tehillim every day.

Example:

To repair his somewhat sloppy record at making it to minyan every morning, Shachar makes a shevuah that he will be in shul for shacharis for the next three days. Should he fail to make it to shacharis any of those days, he would be breaking his shevuah, which contravenes a Torah prohibition.

Whether a specific declaration constitutes a neder or a shevuah depends on halachic technicalities, usually contingent on how one makes the declaration. Several halachic differences result from whether someone made a neder or a shevuah, including that violating a shevuah is a more serious infraction (Ran, Nedarim 20a). Later in this article I will mention another important difference between them.

(3) Kabbalas mitzvah, declaring that one will perform a good deed

Someone who declares: I will arise early and study this chapter or that mesechta has declared a great vow to the G-d of Israel (Nedarim 8a). Someone who expresses these plans, intending to perform an exemplary act, has now obligated himself, even though he did not use the terms “vow,” “oath,” or “pledge” (Shulchan Aruch, Yoreh Deah 213:2).

Example:

Asking others to say certain chapters of Tehillim can create a stumbling block. Specify that it is being done bli neder.

(4) Kabbalas tzedakah, intending to donate charity

In the specific instance of contributing tzedakah funds, even deciding to give tzedakah without verbalizing one’s intention creates an obligation to donate tzedakah (Rema, Yoreh Deah 259:13; see also Choshen Mishpat 212:8; based on Shevuos 26b).

(5) Performing a stringency

Someone who is aware that performing a certain hiddur in halacha is not obligatory, and begins to keep it with the intention of observing it regularly, becomes required to continue the practice as a form of vow. It becomes a binding obligation, requiring hataras nedarim, annulling vows – even if the individual fulfilled the practice only one time, and even if he did not declare that he intends to continue the practice (Nedarim 15a; Shulchan Aruch, Yoreh Deah 214:1).

Examples:

Someone who begins standing during kerias haTorah, intending to continue the practice, becomes obligated to do so, unless he specified that he is doing so bli neder. He should perform hataras nedarim at the first opportunity, so as to avoid violating the prohibition of abrogating observance of a vow. After performing hataras nedarim, he may continue the practice of standing during kerias haTorah, but should have in mind that he is doing it bli neder.

A woman began lighting a third Shabbos candle in her own home after her first child was born. This practice might now become an obligation. She then did so the first time she visited her parents’ house; most women who kindle more than two lights before Shabbos do so only in their own home, but kindle only two when they are guests in someone else’s home. She asked a shaylah whether she should have hataras nedarim on the practice of kindling a third light, and she was told to do so.

(6) Three times

Someone who performs a stringent practice three times without saying bli neder must continue to fulfill the hiddur, even if he had not planned to observe it always (Kitzur Shulchan Aruch 67:7).

Saying “bli neder

Should I not observe hiddurim? I want to do these mitzvos, but I certainly do not want to be punished if I fail to continue performing them! How do I avoid becoming obligated?

To avoid creating this commitment, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation (Kitzur Shulchan Aruch 67:4). Similarly, someone who begins practicing a halachic hiddur should say that he is not accepting it as an obligation.

Example:

Hadassah decides that she will eat only glatt kosher meat or will use only chalav Yisroel products, both meritorious activities. She should state that she is doing it “bli neder.”

Similarly, when pledging money during yizkor, while making a mishebeirach or making any other oral commitment to donate charity, one should be careful to say bli neder. When others are pledging to tzedakah and one feels pressured to participate, specify that the pledge is bli neder (Shulchan Aruch, Yoreh Deah 257:4). It is still proper to donate the money, but stating that it is prevents bli neder a mishap should one forget or later be unable to do so.

Saying “bli neder” even for a non-mitzvah

Some authorities recommend saying bli neder on all one’s activities, even those that do not fulfill a mitzvah, so that the habit helps prevent one from inadvertently creating nedarim (Kitzur Shulchan Aruch 67:4).

Example:

Chavah tells her husband, “I am going to exercise class this morning, bli neder.” Although the statement that she plans to exercise does not create any obligation on her part, habituating herself to say bli neder is a good practice to develop.

We can now answer one of the questions asked above. “I have a friend who says bli neder on almost everything. Is this being too frum?” The answer is that your friend is being astutely cautious and following the advice of halachic authorities.

Don’t delay paying

In addition to the abovementioned concerns involved in pledging tzedakah, the Gemara rules that the mitzvah of bal te’achar, not to delay the donation of a korban, applies also to tzedakah (Rosh Hashanah 6a). This means that someone who pledges money to a charitable cause is required to pay the pledge as soon as he can.

To quote the Rambam: Tzedakah is included in the laws of vows. Therefore, someone saying, “I am obligated to provide a sela coin to tzedakah,” or, “This sela shall go to tzedakah,” must give it to poor people immediately. If he subsequently delays redeeming the pledge, he violates bal te’acher, since he could have given it immediately, as there are poor people around. If there are no poor people, he should set aside the money until he finds a poor person. However, if, at the time of his pledge, he specified that he is not intending to redeem the pledge until he locates a poor person, he is not required to set aside the money (Hilchos Matanos Aniyim 8:1).

Someone who declares that he will give tzedakah to a certain poor person is not required to give the money until he sees that person (Rema, Yoreh Deah 257:3). However, someone who pledged to contribute to destitute people, without qualifying which poor people he meant, is required to fulfill his pledge immediately (Mordechai, Bava Basra 491).

What is hataras nedarim?

Now that we realize that creating obligations is rather extensive, we want to find out, quickly, how to release ourselves from these vows.

Chazal derive from the Torah that one can be absolved from a vow, pledge or other such commitment, by a process called hataras nedarim. Hataras nedarim does not, in the slightest way, diminish the reward that one receives for the good deeds performed. It simply removes the continuing obligation to fulfill the vow from the individual who created that vow. Therefore, in the vast majority of circumstances, someone who made a neder should undergo hataras nedarim, so that he releases the obligation from himself and therefore does not violate the neder (see Nedarim 22a).

How does one undergo hataras nedarim?

The person who made the vow or other commitment goes to three Jewish men who understand the logic of halacha and know the basics of how hataras nedarim operates (Shulchan Aruch, Yoreh Deah 228:1 and commentaries). These three form a type of ad hoc beis din for the purpose of releasing vows. One of the three should be a talmid chacham, proficient in the laws of hataras nedarim – and he should be knowledgeable concerning which vows one may not annul (Shulchan Aruch, Yoreh Deah 228:14; Kitzur Shulchan Aruch 67:8).

The nodeir, the person who made the vow, shares with the three (or, at least, with the talmid chacham who is proficient in the laws of nedarim) the content of the vow, oath, or good practice from which he desires release and why he seeks relief. The talmid chacham asks the nodeir several questions that must be answered truthfully. The talmid chacham thereby determines whether there are valid grounds to release the nodeir from the commitment (Shulchan Aruch, Yoreh Deah 228:14). Only a talmid chacham who understands the very complicated laws of vows should undertake hataras nedarim, because many details must be met for the hataras nedarim to be valid. (The details of what constitutes an adequate basis for hataras nedarim are beyond the scope of this article.)

Once the talmid chacham feels that there are adequate grounds for hataras nedarim, the beis din declares the neder or other commitment annulled by declaring, “mutar lach, mutar lach, mutar lach” – the activities prohibited by the vow are now permitted. Of course, in the case of a vow to do something, the words mutar lach mean the reverse – the person is no longer obligated to carry out the vow.

Someone who violated his vow prior to performing hataras nedarim has sinned, and is required to perform teshuvah for his or her infraction.

The difference between a neder and a shevuah

There is a halachic difference between performing hataras nedarim to release someone from the obligation he created with a neder, and performing hatarah after someone recited a shevuah. Whereas, in most instances, one should arrange to release someone from a neder, one annuls a shevuah only under extenuating circumstances (Rema, Yoreh Deah 203:3; Rambam end of Hilchos Shavuos). Explaining why this is so will need to wait for a future article.

When has a vow or an oath been created? We’ll discuss that in part 2 of this article.

How Not to Desecrate Shabbos

Question:

“I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

Foreword:

The story of the mekosheish, the man caught gathering wood on Shabbos, in Parshas Shelach, contains a host of conflicting and unusual midrashim. The story also serves as a springboard for many halachic and hashkafic issues. In order to appreciate fully these issues and midrashim, we must first analyze what the Torah tells us about this story, what Chazal derive from the pesukim, and some more halachic detail that is germane to the story. Then we will be in a position to discuss the question raised above.

The words of the Chumash

“When the Bnei Yisroel were in the Desert, they discovered a man gathering wood on Shabbos. Those who found the woodgatherer brought him to Moshe, Aharon and the rest of the community, and he was placed in custody, because it had not been explained what to do with him” (Bamidbar 15:32-34). The posuk then describes the punishment meted out to the woodgatherer. This was the first instance in history of beis din, a Jewish court, carrying out a ruling because someone defiled Shabbos.

Desecration of Shabbos is punishable by beis din only when many requirements are met, including that the perpetrator acknowledges that he is violating one of the 39 melachos of Shabbos, and that he accepts the punishment that the Torah metes out. The Gemara (Sanhedrin 41a) notes that the words of the Torah they found him gathering implies that the woodgatherer was caught in the middle of his act of violating Shabbos, and he continued desecrating Shabbos even after being warned that his action was liable to punishment by beis din.

Which melacha?

When the Mishnah lists the 39 melachos (Shabbos 73a), it does not include “gathering wood.” Indeed, which of the 39 melachos of Shabbos did the woodgatherer violate? Since the halacha requires that the desecrator be warned which melacha he is violating (see Shabbos 138a), this is important information to ascertain.

The Gemara (Shabbos 96b) cites three opinions concerning which melacha the mekosheish performed. According to Rav Yehudah, he carried through a public area on Shabbos. According to a second opinion, he was chopping down trees, thus violating the melacha of kotzeir, reaping, or, more accurately, disconnecting growing items from the ground. According to a third opinion, he violated the melacha of me’ameir, gathering things from where they grow or fall. This third opinion is also cited in the ancient commentary on Chumash, usually, but inaccurately, called the Targum Yonasan. Each of these three approaches requires some explanation.

Hotza’ah

One violates carrying on Shabbos min haTorah by transporting an item from a reshus harabim, an area meant for public use, into a reshus hayachid, an enclosed area, or vice versa. Alternatively, one can violate carrying by transporting an item more than four amos (about seven feet) through a reshus harabim. There are other details that need to be met that we will not discuss in this article.

However, this presents us with a conundrum. Since a desert is not a public thoroughfare or marketplace, carrying there should not violate Shabbos min haTorah. Rather, it should have the halachic status called a karmelis, an open area not meant for public use, in which carrying on Shabbos is prohibited only because of rabbinic injunction, which would leave the mekosheish exempt from violating the Torah prohibition of carrying on Shabbos.

The explanation is found in the following passage of Gemara (Shabbos 6a-b):

What qualifies as a reshus harabim? A street, a large marketplace, or a side road that is open on both sides…. But why does the Tanna not include a desert, since a different beraisa states, “What qualifies as a reshus harabim? A street, a large marketplace, a side road or the desert.” Abaya explains that there is no contradiction between these two statements, the latter beraisa is discussing the era when the Jews were living in the desert, and the first statement is discussing today. In other words, although a desert is usually considered a karmelis, when a large population, such as the entire Jewish people, is living in a desert, it qualifies as a “public area” for Shabbos purposes. Once the desert path on which the Bnei Yisroel were traveling is considered a reshus harabim, every part of that desert is now considered a reshus harabim (Biur Halacha, 345:7). Therefore, when the mekosheish carried there, he was carrying in a reshus harabim and violating the laws of Shabbos min haTorah.

Kotzeir

A second opinion that we quoted above held that the mekosheish was chopping down trees and thereby performed the melacha of kotzeir, reaping. The Gemara explains that someone harvesting wood on Shabbos violates the melacha of kotzeir (Shabbos 73b). According to this approach, it is curious that the Torah describes the mekosheish as “gathering wood,” not as chopping down trees.

Me’ameir

The third opinion explained that the mekosheish violated me’ameir, the fourth of the 39 melachos, according to the order in the Mishnah. This melacha prohibits gathering together items from where they grow or fall naturally. The Rambam mentions cases of someone who gathered food, feed or kindling, and also mentions someone who created a figcake or strung together figs, as acts that violate me’ameir min haTorah. According to many early authorities, these last two cases refer only to someone who took figs from where they fell near the tree and pressed or strung them together (Kesef Mishneh, Hilchos Shabbos 8:6, quoting Remach; Semag). However, many authorities disagree (Ma’aseh Rokei’ach; Nishmas Adam 13:1; Graz 340:15; Mishnah Berurah 340:38, and Eglei Tal 2:3 ff.), contending that, in these instances, for reasons beyond the scope of this article, one can violate me’ameir even when the fruit is not in its original location.

By the way, since people are less familiar with the melacha of me’ameir, someone could violate the melacha without realizing. For example, someone who collects fallen fruit in an orchard on Shabbos and throws them into a basket violates the melacha min haTorah (Mishnah Berurah 340:37).

The Gemara quotes a dispute whether me’ameir applies min haTorah to someone who gathers sea salt from its evaporation pits. Rava (or Rabbah, depending on a variant text) contends that this violates Shabbos min haTorah, whereas Abaya disagrees, contending that me’ameir is limited to items that grow from the ground (Shabbos 73b). There is a dispute among rishonim concerning how we rule. The Rambam rules that me’ameir is limited to items that grow from the ground (Hilchos Shabbos 8:5), whereas the Remach rules that me’ameir applies even to items that do not grow from the ground. Most later authorities conclude like the Rambam (Kesef Mishneh; Shulchan Aruch, Orach Chayim 340:9, Elya Rabbah, Graz and Mishnah Berurah; Chayei Adam 13:1; however, see Eglei Tal 2, who treats this matter as an unresolved dispute).

In conclusion, since lumber and kindling wood both grow from the ground, it is easy to understand that the mekosheish may have been violating the melacha of me’ameir by gathering fallen wood (Shabbos 96b).

We now understand the three opinions that the mekosheish may have been carrying in a reshus harabim, may have been cutting down trees, or may have been gathering fallen wood and violating the melacha of me’ameir. Now that we have discussed which melacha he violated, for a fuller understanding of the story we may want to attempt to identify who the mekosheish was!

Was he Tzelafchad?

The Torah (Bamidbar 27 1-7; 361-11) recounts the story of the daughters of Tzelafchad. Tzelafchad participated in the Exodus from Mitzrayim but did not make it to Eretz Yisroel. The posuk tells us that Tzelafchad left five daughters, but no sons. Rabbi Akiva, quoted in a passage of Gemara (Shabbos 99b), is of the opinion that the woodgatherer described above was Tzelafchad. To quote the passage of Gemara:

Our sages taught: The mekosheish was Tzelafchad, as the Torah says, And the Bnei Yisroel were in the Desert, and they found a man gathering wood on Shabbos,’ and later on it says, Our father died in the Desert. Just as the second verse refers to Tzelafchad, so does the first.’ This is the opinion of Rabbi Akiva. Rabbi Yehudah ben Beseira said to him, ‘Akiva, either way you will be punished for saying this. If you are correct, the Torah hid this information and you had the audacity to reveal it! And if you are incorrect, you are spreading lies about a tzadik!’”

Midrashim take sides

Our Gemara does not say explicitly whether Rabbi Yehudah ben Beseira agreed with Rabbi Akiva or not. His criticism of Rabbi Akiva was for recounting the information. However, there are many midrashim that weigh in on this issue, some agreeing with Rabbi Akiva, including the Zohar, whereas others dispute his claim. For example, we find the following statement in Sifrei Zuta (Bamidbar 15, 32): “Rabbi Shimon said, ‘It is impossible to say that the mekosheish was Tzelafchad.’

The Yalkut Shimoni, a collection of reliable early midrashim, many of them no longer extant anywhere else, quotes a different tanna who also disagrees with Rabbi Akiva (#749).

Response of Rabbi Akiva

Although the Gemara does not cite a response of Rabbi Akiva to Rabbi Yehudah ben Beseira’s criticism for revealing information that the Torah kept hidden, there is a Midrash that cites a very interesting approach, explaining more about Tzelafachad and what he wanted to accomplish. I will present this approach, as explained by the Maharsha — but first we need a rather extensive introduction.

Although Shabbos is a very strict mitzvah, the laws of Shabbos contain some very interesting rules. One of these rules is called melacha she’einah tzericha legufah, which translates literally as a work activity that is not necessary for itself, an expression that is almost meaningless in English. There are many different approaches how to explain this concept, variant ways to explain the words, and a dispute what the halachic status is, all of which combine to create a confusing discussion. I will endeavor to explain melacha she’einah tzericha legufah as it applies to our discussion.

To begin with, let us examine one of the approaches to explain the concept.

The 39 melachos of Shabbos are derived from the activities performed in the building of the Mishkan in the Desert. Notwithstanding the importance of constructing the Mishkan as quickly as possible, it was strictly prohibited to perform any aspect of its building on Shabbos. From this we see that whatever was necessary for building the Mishkan could not be done on Shabbos, and so we are being told, indirectly, what the Torah forbade on Shabbos.

Tosafos (Shabbos 94a s.v. Rabbi Shimon) explains melacha she’einah tzericha legufah that, not only do we derive the definitions of the 39 melachos from the construction of the Mishkan, but that the prohibition min haTorah includes only activities whose purpose is similar to the purpose for which this melacha activity was performed in the Mishkan. Here are some examples to clarify what Tosafos means.

One of the 39 melachos of Shabbos is gozeiz, shearing, which includes any act that removes something from a living creature. The construction of the Mishkan required obtaining wool, which requires shearing it off sheep; this is a classic example of gozeiz. In this instance, the purpose of the shearing is to obtain usable material that is removed from the creature.

The question we will now ask is whether the melacha is violated min haTorah when gozeiz is performed not for the purpose of using the material that is removed. For example, when someone receives a haircut or clips his nails, he is removing something from a living creature, but he is not interested in the hair (with the exception of someone harvesting hair to sell for wig manufacture) or the nails. Is having a haircut or trimming nails prohibited min haTorah on Shabbos under the heading of gozeiz, or is it prohibited only miderabbanan, and the Torah prohibition of gozeiz is violated only when someone “shears” something that is usable, such as wool or hair suitable for wig manufacture?

According to Tosafos, this is the question of melacha she’einah tzericha legufah, which, the Gemara teaches, is the subject of a dispute among tanna’im. According to Rabbi Shimon, trimming hair or cutting nails is prohibited only as a rabbinic prohibition, since we do not use the trimmed items (Tosafos, Shabbos 94b s.v. aval). The disputing tanna, Rabbi Yehudah, rules that someone who performs a melacha she’einah tzericha legufah on Shabbos is culpable min haTorah. In his opinion, the fact that we do not use the trimmed nails or hair is irrelevant in defining the act as a melacha, as long as the results of the melacha are positive. In this instance, because of asthetic reasons the trimmed nails or hair is a desired outcome. Therefore, these acts violate Shabbos min haTorah, notwithstanding that one’s purpose was qualitatively different from the goal of this melacha in the construction of the Mishkan.

Here is another example of melacha she’einah tzericha legufah: Digging a hole in the ground only because someone needs the earth, but he has no need for the hole. The plowing performed in the building of the Mishkan was in order to plant, whereas digging a hole to obtain earth is qualitatively different from why this melacha was performed for the purpose of building the Mishkan. Therefore, this act qualifies as a melacha she’einah tzericha legufah, and it is exempt from desecrating Shabbos min haTorah according to Rabbi Shimon.

Among the rishonim, we find many other approaches to explain the concept of melacha she’einah tzericha legufah, but for clarity’s sake, we will limit our discussion to the approach of Tosafos.

Returning to the mekosheish

What does the purpose for which we do a melacha have to do with the mekosheish?

Based on his analysis of a midrash, the Maharsha (Commentary to Bava Basra 119a) explains that the mekosheish’s goal was not to perform the melacha, but to become an educational tool.The punishment he would receive for violating Shabbos would teach the Bnei Yisroel the stringency of observing Shabbos. Since he was not interested in the results of his melacha activities, they had the halachic category of melacha she’einah tzericha legufah. According to the authorities who rule that melacha she’einah tzericha legufah is not a Torah violation, the mekosheish never desecrated Shabbos, but instead was creating greater respect for Shabbos. Thus, the answer to the question posed to Rabbi Akiva — how could you reveal negative information about a tzadik — is that the mekosheish was not doing an aveirah, but a mitzvah!

We should note that, even if Tzelafchad was permitted to perform the specific melacha activity that he did, we would not be permitted to perform this activity because it is now prohibited by a rabbinic injunction. This prohibition had not yet been created in the days of Tzelafchad.

Why was he punished?

If, according to the Maharsha, Tzelafchad had technically not violated Shabbos, why was he punished by the beis din as if he had?

The Maharsha explains that since his thoughts of educating Bnei Yisroel were not known, the witnesses and the beis din dealt only with his actions, which is exactly what Tzelafchad wanted.

Thus, we can answer our opening question: “I was once told that the mekosheish was a frum Jew who did not really desecrate Shabbos. What does this mean?”

The answer is that, according to the approach suggested by the Maharsha, the mekosheish was a good guy, whose goal was to strengthen the commitment of Klal Yisroel to the observance of Shabbos, a mission that he accomplished. According to this suggestion, we can readily understand how he fathered such exemplary daughters.

Conclusion

Rav Samson Raphael Hirsch (Shemos 20:10) notes that people mistakenly think that work is prohibited on Shabbos in order to provide a day of rest. This is incorrect, he points out, because the Torah does not prohibit doing avodah, which connotes hard work, but melacha, which implies purpose and accomplishment. On Shabbos, we refrain from constructing and altering the world for our own purposes. The goal of Shabbos is to emphasize Hashem’s rule as the focus of creation by refraining from our own creative acts (Shemos 20:11). Understanding that the goal of our actions affects whether a melacha activity has been performed demonstrates even more so the concepts of purpose and accomplishment.

Waiting for Twelve Months

The end of parshas Balak includes a reference to the laws of kashrus:

Question #1: Sentimental China

“A family is in the process of kashering their home for the first time, and they own an expensive and sentimental, but treif, set of china. Is there any way that they can avoid throwing it away?”

Question #2: No Bologna

“I own an expensive set of fleishig china that I do not use, and, frankly, I desperately need money for other things now. Someone is interested in paying top price for this set because it matches their milchig china. Is there any way I can kasher it and sell it to them, and they may use it for milchig?”

Question #3: Hungary on Pesach

“Help! I just completed cooking the seudos for the first days of Pesach, and I realize now that I used a pot that was used once, more than two years ago, for chometz. Do I have to throw out all the food I made? I have no idea when I am going to have time to make the seudos again!”

Introduction:

Every one of the she’eilos mentioned above shows up in one of the classic works of responsa that I will be quoting in the course of this article. They all touch on the status of food equipment that has not been used for twelve months. In order to have more information with which to understand this topic, I must first introduce some halachic background.

When food is cooked in a pot or other equipment, halacha assumes that some “taste,” of the food remains in the walls of the pot, even after the pot has been scrubbed completely clean. We are concerned that this will add flavor to the food cooked subsequently in that pot. This is the basis for requiring that we kasher treif pots, because the kashering process removes the residual taste.

Until the pot is kashered

Once twenty-four hours have passed since the food was cooked, the residual taste in the vessel spoils and is now categorized as nosein taam lifgam, a halachic term meaning thatthe taste that remains is unpleasant. Something is considered nosein taam lifgam even if it is only mildly distasteful.

The Gemara (Avodah Zarah 67b) cites a dispute between tana’im whether nosein taam lifgam is permitted or prohibited. The Mishnah (Avodah Zarah 65b) rules that nosein taam lifgam is permitted. This is the conclusion of the Gemara in several places (Avodah Zarah 36a, 38b, 39b, 65b, 67b) and also the conclusion of the halachic authorities (Rambam, Hilchos Ma’achalos Asuros 17:2; Shulchan Aruch, Yoreh Deah 103:5; 122:6). This means that, although it is prohibited to eat a food that includes a pleasant taste or residue of non-kosher, when the non-kosher food provides a less than appetizing flavor, the food is permitted.

Here is an example that bears out this rule. Glycerin (sometimes called glycerol), which is frequently manufactured from non-kosher animal fat, is often used as an ingredient in foods because, in addition to its other properties, it also adds a sweet flavor to the product. Therefore, when non-kosher glycerin is used in an otherwise kosher product, as I once found in a donut glaze, the product — in this case the donuts — are non-kosher.

On the other hand, if the ingredient adds an unpleasant taste, the finished product remains kosher.

Treif pots

Because of the halachic conclusion that nosein taam lifgam is permitted, min haTorah one would be allowed to use a treif pot once twenty-four hours have passed since it was last used. As mentioned above, at this point the absorbed flavor is considered spoiled, nosein taam lifgam. The reason that we are required to kasher equipment that contains nosein taam lifgam is because of a rabbinic injunction. This is because of concern that someone might forget and cook with a pot that was used the same day for treif, which might result in the consumption of prohibited food (Avodah Zarah 75b).

Chometz is exceptional

The above discussion regarding the rules of nosein taam lifgam is true regarding use of a pot in which non-kosher food was cooked. However, regarding chometz, the prohibition is stricter. Ashkenazim rule that nosein taam lifgam is prohibited in regard to Pesach products. Why is the halacha stricter regarding Pesach? Nosein taam lifgam still qualifies as a remnant of non-kosher food; it is permitted because it does not render a positive taste. However, regarding Pesach, we rule that even a minuscule percentage of chometz is prohibited. Thus, if a chometzdik pot was used to cook on Pesach, even in error, the food is prohibited.

Fleishig to milchig

The rules governing the use of fleishig equipment that was used for milchig and vice versa are similar to the rules that apply to treif equipment, and not the stricter rules that apply to chometzdik equipment used on Pesach. Someone who cooks or heats meat and dairy in the same vessel, on the same day, creates a prohibited mix of meat and milk. If the fleishig equipment had not been used the same day for meat, the meat flavor imparted to the dairy product is nosein taam lifgam. Although the pot must be kashered, since it now contains both milk and meat residue, the dairy food cooked in it remains kosher (Shulchan Aruch, Yoreh Deah 93:1). The same is true regarding dairy equipment used to prepare fleishig.

Kashering from fleishig to milchig

Although non-kosher equipment can usually be kashered to make it kosher, and chometzdik equipment can usually be kashered to make it kosher for Passover, there is a longstanding custom not to kasher fleishig equipment to use as milchig, and vice versa (Magen Avraham 509:11). The reason for this custom is because if a person regularly koshers his pots or other equipment from milchig to fleishig and back again, he will eventually make a mistake and use them for the wrong type of food without kashering them first (Shu’t Igros Moshe, Yoreh Deah 1:43). By the way, it is accepted that someone who kashered their fleishig pot for Pesach may now decide to use it for milchig and vice versa.

Earthenware

We need one more piece of information before we begin to discuss the laws of equipment that has not been used for twelve months. That is to note that there is equipment that cannot usually be kashered. The Gemara teaches that we cannot kasher earthenware equipment, since once the non-kosher residue is absorbed into its walls, it will never come out. (Some authorities permit kashering earthenware or china, which is halachically similar, three times, although this heter is not usually relied upon. A discussion on this point will need to be left for a different time.)

Twelve months

Now that we have had an introduction, we can discuss whether anything changes twelve months after food was cooked. Chazal created a prohibition, called stam yeinam, which prohibits consumption, and, at times, even use, of wine and grape juice produced by a non-Jew. Halachically, there is no difference between wine and grape juice. Notwithstanding the prohibition against using equipment that was once used for non-kosher, we find a leniency that equipment used to produce non-kosher wine may be used after twelve months have transpired. The equipment used by a gentile to crush the juice out of the grapes, or to store the wine or grape juice is also prohibited. This means that we must assume that this equipment still contains taste of the prohibited grape juice.

The Gemara (Avodah Zarah 34a) rules that the grape skins, seeds and sediment left over after a gentile crushed out the juice are prohibited both for consumption and for benefit. This is because non-kosher grape juice is absorbed into the skins, seeds and sediment. However, after they have been allowed to dry for twelve months, whatever non-kosher taste was left in the skins, seeds and sediment are gone, and it is permitted to use and even eat them. Similarly, once twelve months have transpired since last use, the equipment used to process or store the non-kosher juice also becomes permitted. Thus, the Gemara rules that the jugs, flasks and earthenware vessels used to store non-kosher wine are prohibited for twelve months, but may be used once twelve months have elapsed since their last use. The conclusions of this Gemara are codified in the Shulchan Aruch (Yoreh Deah 135:16). The process of allowing twelve months to transpire and then permit the leftovers is called yishun.

Several common products are permitted because of this halacha. One example is a wine derivative called tartaric acid, an organic compound with many practical usages. Among its food uses is in beverages, as a flavor enhancer and as baking powder. It is commonly considered kosher, notwithstanding that it is a by-product of non-kosher wine. (It should have a hechsher since it can be produced in ways that are non-kosher.)

It is important to note that this method of kashering, i.e., of waiting twelve months, is mentioned in the Gemara only with reference to kashering after the use of non-kosher wine. The halachic authorities debate whether this method of kashering may be used regarding other prohibitions, and this is the starting point for us to address our opening questions.

Hungry on Pesach

“Help! I just completed cooking the seudos for the first days of Pesach, and I realize now that I used a pot that was used once, more than two years ago, for chometz. Do I have to throw out all the food I made? I have no idea when I am going to have time to make the seudos again!” It would seem that there is no hope for this hardworking housewife, and indeed all her efforts are for naught. However, let us examine an actual case and discover that not everyone agrees.

A very prominent eighteenth-century halachic authority, the Chacham Tzvi, was asked this question: On Pesach, someone mistakenly cooked food in a pot that had been used once, two years before, for chometz. Since Ashkenazim rule that even nosein taam lifgam is prohibited on Pesach, it would seem that the food cooked on Pesach in this pot is prohibited, and this was indeed what some of those involved assumed. However, the Chacham Tzvi contended that the food cooked in this pot is permitted, because he drew a distinction between nosein taam lifgam after 24 hours, and yishun after 12 months. He notes that grape juice absorbed into the vessels or the remaining seeds and skins is prohibited, even for benefit, for up to 12 months, yet after 12 months it becomes permitted. Thus, we see that even the actual wine becomes permitted, because after twelve months it dries out completely and there is no residual taste. It must certainly be true, reasons the Chacham Tzvi, that chometz flavor absorbed into a pot or other vessel must completely dissipate by twelve months after use and that no residual taste is left (Shu’t Chacham Tzvi #75, 80; cited by Pischei Teshuvah, Yoreh Deah 122:3).

Notwithstanding this reasoning, the Chacham Tzvi did not permit using treif equipment without kashering it, even when twelve months transpired since its last use. He explains that since Chazal prohibited use of treif equipment even when the product now being manufactured will be kosher, no distinction was made whether more than a year transpired since its last use — in all instances, one must kasher the vessel before use and not rely on the yishun that transpires after twelve months. However, after the fact, the Chacham Tzvi permitted the food prepared by Mrs. Hardworking in a pot that had been used for chometz more than twelve months before.

Aged vessels

About a century after the Chacham Tzvi penned his responsum, we find a debate among halachic authorities that will be germane to a different one of our opening questions.

Someone purchased non-kosher earthenware vessels that had not been used for twelve months. He would suffer major financial loss if he could not use them or sell them to someone Jewish. Rav Michel, the rav of Lifna, felt that the Jewish purchaser could follow a lenient approach and use the vessels on the basis of the fact that, after twelve months, no prohibited residue remains in the dishes. However, Rav Michel did not want to assume responsibility for the ruling without discussing it with the renowned sage, Rabbi Akiva Eiger (Shu’t Rabbi Akiva Eiger 1:43).

Rabbi Akiva Eiger rejected this approach. First of all, he noted that the Chacham Tzvi, himself, did not permit cooking in vessels aged twelve months since last use, only permitting the product that was cooked in those pots.

Secondly, Rabbi Akiva Eiger disputed the Chacham Tzvi’s approach that the concept of yishun applies to anything other than wine. Rabbi Akiva Eiger writes that, among the rishonim, he found the following explanation of yishun: The Rashba writes that the concept of yishun applies only to wine vessels, and the reason is because no remnant of the wine is left since it has dried out (Shu’t Harashba 1:575). Rabbi Akiva Eiger writes that the only other rishon he found who explained how yishun works also held the same as the Rashba. This means that the kashering method known as yishun applies only for non-kosher wine, but to no other prohibitions. Since Rabbi Akiva Eiger found no rishon who agreed with the Chacham Tzvi, he was unwilling to accept this heter. In his opinion, the food cooked on Pesach by Mrs. Hardworking is chometzdik and must be discarded.

Sentimental china

At this point, let us examine a different one of our opening questions:

“A family is in the process of kashering their home for the first time, and they own an expensive, but treif, set of china. Is there anyway that they can avoid throwing it away?”

Rav Moshe Feinstein was asked this exact question (Shu’t Igros Moshe, Yoreh Deah 2:46). Rabbi Shmuel Weller, a rav in Fort Wayne, Indiana, asked Rav Moshe about a family that, under his influence, had recently decided to keep kosher. The question is that they have an expensive set of porcelain dishes that they have not used for over a year and they do not want to throw it away. Is there any method whereby they may still use it? Rav Moshe writes that, because of the principle of takanas hashavim — which means that to encourage people who want to do teshuvah we are lenient in halachic rules — one could be lenient. The idea is that although Chazal prohibited use of an eino ben yomo, they prohibited it only because there is still residual flavor in the vessel, although the flavor is permitted. Once twelve months have passed, the Chacham Tzvi held that there is no residual flavor left at all. Although the Chacham Tzvi, himself, prohibited the vessels for a different reason, Rav Moshe contends that there is a basis for a heter. (See also Shu’t Noda Biyehudah, Yoreh Deah 2:51.)

Rav Moshe notes that there are other reasons that one could apply to permit kashering this china, and he therefore rules that one may permit the use of the china by kashering it three times. Because of space considerations, the other reasons, as well as the explanation why kashering three times helps, will have to be left for a different time.

No bologna

At this point, let us refer again to a different one of our opening questions: “I own an expensive set of fleishig china that I do not use, and, frankly, I desperately need money for other things now. Someone is interested in paying top price for this set because it matches their milchig china. Is there anyway I can kasher it and sell it to them, and they may use it for milchig?”

This question presents two problems:

(1) Is there any way to remove the residual fleishig flavor and kasher the china?

(2) Is it permitted to kasher anything from fleishig to milchig?

In a responsum to Rav Zelig Portman, Rav Moshe Feinstein (Shu’t Igros Moshe, Yoreh Deah 1:43) discusses this question.

We will take these two questions in reverse order. As I mentioned earlier, the Magen Avraham (509:11) reports that there is an accepted minhag not to kasher fleishig equipment in order to use it for milchig, and vice versa. Wouldn’t changing the use of this china violate the minhag?

Rav Moshe explains that the reason for this minhag is to avoid someone using the same pot, or other equipment, all the time by simply kashering it every time he needs to switch from milchig to fleishig. The obvious problem is that, eventually, he will make a mistake and forget to kasher the piece of equipment before using it.

Rav Moshe therefore suggests that the custom of the Magen Avraham applies only to a person who actually used the equipment for fleishig; this person may not kasher it to use for milchig. However, someone who never used it for fleishig would not be included in the minhag.

Regarding the first question, Rav Moshe concludes that, since twelve months have passed since the china was last used for fleishig, one may kasher it.

Conclusion

The Gemara teaches that the rabbinic laws are dearer to Hashem than are the laws of the Written Torah. In this context, we understand that Chazal established many rules to protect the Jewish people from violating the Torah’s laws of kashrus. This article has served as an introduction to one aspect of the laws of kashrus that relates to utensils. Not only is the food that a Jew eats required to be given special care, but also the equipment with which he prepares that food. We should always hope and pray that the food we eat fulfills all the halachos that the Torah commands us.

The Tumah of Utensils

Since the beginning of this week’s parsha is all about the laws of tumah and taharah, we will be studying these laws in preparation for the arrival of the Moshiach!

Question #1: Slingshots like Tefillin?!?

How are slingshots like Tefillin?

Question #2: Sack or sock?

What is the difference between a sack and a sock?

Question #3: Very earthy

How is an earthenware oven different from other earthenware utensils?

Introduction:

Since, unfortunately, our Beis Hamikdash still lies in ruins, the laws of tumah and taharah do not affect our daily lives significantly. As a result, many people do not approach the study of these laws enthusiastically, and do not pay adequate attention to the Torah readings when they concern this topic. Yet, our prayers for Moshiach to come at any moment require us to be fully knowledgeable of the laws of tumah and taharah, so that we are prepared to observe them.

Some tumah basics

Someone who becomes tamei may not enter the Beis Hamikdash or consume terumah, ma’aser sheini, bikkurim, kodoshim or any other foods that have sanctity.

The following passage of the Torah in parshas Shemini mentions eleven different categories of the laws of tumah, which are numbered in the selection below to facilitate explaining them afterward. The Torah writes:

Among animals that walk on all fours (1), anything that walks upon its forepaws is impure (tamei). Whoever touches the carcass of such an animal will be tamei until evening. And whoever carries their carcass must wash his clothes, and he is tamei until evening, because these animals are tamei for you.

And the following creatures that creep on the ground (2) are tamei for you: The weasel, the mouse, and the various species of toad; also, the hedgehog, the ko’ach, the lizard, the snail and the mole. These are tamei to you, among all the creeping animals – whoever touches them after they are dead will be tamei, until evening. And anything that falls upon them after they are dead will become tamei, whether it is a wooden vessel (3) or a garment (4) or leather (5) or sackcloth (6) – any vessel with which work is performed (7). It must be immersed in water, and then it remains tamei until evening, at which point it becomes tahor.

Furthermore, any part of them (that is, the eight tamei “creeping creatures”) that will fall inside any earthenware vessel (8), whatever is inside it will become tamei and you shall break it (that is,the earthenware vessel). And any edible food (9) that had water touch it can become tamei. Similarly, any liquid (10) that can be drunk will become tamei, if inside such a vessel. Furthermore, anything on which part of a carcass falls will become tamei. An oven or stove (11) should be destroyed, because they are tamei, and when you use them, they will be tamei (Vayikra 11:27-35).

The Torah described many different types of tumah (spiritual contamination). In a previous article on this topic, I explained the laws of neveilah and sheretz (numbers 1 and 2 above).

Utensils that become tamei

Returning to our passage, after mentioning the tumah of neveilah and sheretz, the Torah lists nine categories of items that become tamei from contact with neveilah or sheretz. The specific items mentioned are: (3) wooden vessels, (4) garments, (5) leather items, (6) sackcloth, (7) vessels described by a not-easily-understood clause, “any vessel with which work is performed,” (8) earthenware, (9) food, (10) beverages and (11) ovens and stoves. Each of these categories has its own specific laws, which are hinted at in the pasuk. For reasons that will soon become obvious, I will divide this list into three groups. The first group consists of the first five items, which I will call, collectively, “immersible utensils.”

(3) Wooden utensils

Wooden vessels have the potential to become tamei if they can hold liquid (called a beis kibul) or when people use them and place items on them, such as a table (Rambam, Hilchos Keilim 4:1). These ideas are suggested by the Torah when it describes wooden items that can become tamei as “vessels” (keilim).

(4-5) Garments and leather

All types of garments are susceptible to tumah, although there is a dispute among late authorities concerning whether synthetic fabrics can become tamei.

(6) Sack

Yes, I wrote sack, not sock. Sackcloth means something manufactured from woven goat’s hair or animal hair, such as from the tail hair of cows (Sifra). In general, goat hair is too coarse to use as clothing, but it was used in earlier generations as a bag or sack for storage or transportation, similar to the way we use burlap today. (Some varieties of goat produce extremely fine wool used for garments, such as cashmere and mohair, but most goats do not.)

(7) From slingshots to tefillin

The Torah mentions that any vessel with which work is performed can become tamei from a sheretz. What is included in this category? The Sifra, the halachic midrash on the book of Vayikra that dates back to the era of the tanna’im, explains that this verse teaches that the following three items become tamei: The sling of a slingshot, tefillin, and a pouch in which one places an amulet.

What do slingshots have in common with tefillin?

These three items contain a beis kibul, a receptacle to hold something, yet some might mistakenly think that they do not qualify as “vessels.” The Torah is teaching that these are considered receptacles, or “vessels,” able to become tamei. In the case of the sling, it is meant to hold a marble, stone or other projectile, albeit for a very brief period of time. In the case of tefillin, this is because the batim of the tefillin contain the parshi’os, and, similarly, in the case of an amulet.

(8) Earthenware

Note that I have separated earthenware and not included it under the same category as the other utensils. This is because earthenware has many halachic differences, some lenient and some stringent, from all other utensils.

All other utensils fall under one of two categories:

(A) Utensils that do not become tamei, which is a topic we are not discussing in this article. An example of this is vessels manufactured from stone. By the way, this explains why excavations in the old city and other areas around Israel have found many vessels and utensils made of stone. Since these items are not susceptible to tumah, kohanim who needed to be concerned not to make their terumah and challah tamei often used stone vessels that could not become tamei.

(B) Utensils that do become tamei but can become tahor again by immersion in a mikveh or spring. This latter categoryis called klei shetef, literally, immersible utensils.

How is earthenware different?

(C) Earthenware vessels fall under a third category, because once they become tamei, the only way they can become tahor again is by being broken. Immersing them in a mikveh or spring does not make them tahor.

There are also several other ways whereby halacha treats earthenware vessels differently than it treats immersible utensils. The section of the Torah quoted above alludes to four of the ways that earthenware vessels are different.

Contaminate from outside

(I) Immersible utensils become contaminated when they come in contact with neveilah, sheretz or other tamei sources, regardless whether they are touched on their internal surface or on their outside. However, if something tamei touched the outside of an earthenware vessel, it remains tahor. An earthenware vessel contracts tumah only from its inside, and only when it has a beis kibul – an area that can serve as a “container” to hold liquid. As a result, a flat earthenware board or an earthenware fork cannot become tamei, since it has no “inside” that holds liquid.

Immersion does not help

(II) As mentioned above, another way that earthenware vessels are different from other utensils is that, once they become tamei, there is no means of making them tahor again, other than breaking them.

Airspace

(III) A third way that earthenware vessels are different from other utensils is that they become tamei if a tamei source, such as a sheretz or neveilah, is suspended within the airspace of the earthenware vessel, even if the sheretz or neveilah does not touch the vessel. Halachically, there is no difference between touching the airspace of an earthenware vessel and touching it on the inside – either way makes the earthenware vessel tamei.

Contaminating from within

(IV) A fourth way that earthenware vessels are different from other utensils is that a tamei earthenware vessel spreads tumah to any food or beverage that is inside the vessel, even if the food or beverage never actually touched the vessel.

These four laws regarding earthenware vessels are all taught in a few words in the pasuk mentioned above: Furthermore, any part of them [the eight tamei creatures] that will fall inside any earthenware vessel, whatever is inside it will become tamei and you shall break it [the earthenware vessel].

The Torah mentions that an earthenware vessel contracts tumah only when something falls inside it, and does not say that the tamei substance must actually touch the earthenware vessel. Also, note that any food or beverage inside the earthenware vessel becomes tamei, even if it did not touch the earthenware vessel, but is suspended inside it. And, lastly, upon becoming tamei, the Torah mentions only one solution for the earthenware vessel: breaking it. There is no other way to make it tahor.

(11) Ovens and stoves

Let us return to the final pasuk quoted above, which discusses a special type of earthenware vessel: Anything on which part of a carcass falls will become tamei. An oven or stove should be destroyed, because they are tamei, and when you use them, they will be tamei.

The ovens of the era of the Torah and Chazal were made of earthenware. Their shape was tubular, meaning that they were completely open on top and bottom. The open bottom was placed over a hollow in the ground, and then the outside of the oven was lined with mud or clay to insulate it well. Fuel was placed in the hollow inside the oven and kindled by means of an opening in the side. The food being cooked or baked was placed inside, either through this opening or through an opening at the top. When these ovens were used as stoves, pots of food were placed on the open top. When they were used as ovens, the open top was covered, usually with a piece of earthenware.

I explain these facts not for anthropological documentation, but so that we can better understand both the pasuk of the Torah and the halacha. Although ovens and stoves were made of earthenware, the Torah mentions them as a different category. This is because other earthenware vessels become tamei only when they have a beis kibul, a receptacle. Under this definition, earthenware ovens and stoves should not become tamei, since they have no bottom. The Torah teaches that ovens and stoves are susceptible to tumah, and have the rules of other earthenware vessels, despite the fact that they have no beis kibul.

There are halachic ramifications to this distinction, but we will not discuss that in this article. The intrepid reader is referred to a halachic discussion in Ohalos 12:1, and the commentaries thereon.

Conclusion

This article and one I sent out for parshas Shemini have served to introduce some of the basic rules of tumah and taharah; this one, as these laws relate to utensils. We hope and pray to be able to observe all of these laws soon.

Can There Be Smoke without a Fire?

In parshas Korach, 250 men burnt ketores and paid with their lives.

Question #1: Frankfurters on the Blech

May I place cold frankfurters on top of a hot pot to warm them on Shabbos?”

Question #2: Cheese Dogs

“May one derive benefit from a cheese dog, which is a grilled hot dog with added cheese and chili sauce?”

Question #3: Lox for Eruv Tavshillin?

“I will be traveling overseas for Yom Tov and Shabbos, and it will be difficult for me to have cooked food ready for an eruv tavshillin. May I use lox as my eruv tavshillin?”

Foreword

Our  opening questions are germane to whether “smoking” qualifies as “cooking,” for halachic purposes. As we will see shortly, the Gemara and halachic authorities discuss several situations affected by this question, with ramifications for the laws of Shabbos, kashrus and eruv tavshillin. Let us begin by understanding some background information.

In general, we are familiar with two very common methods of preparing food using heat. In one instance, the food is cooked directly by the heat, without any medium. This is what we do when we barbecue, broil, or bake. The food is cooked or baked directly by the heat. On the other hand, when we boil or fry food, we cook it in a hot liquid — when boiling, usually in water, and when frying, in oil.

There are also many methods of making raw food edible without heat, such as salting, pickling or marinating. Preparing food this way causes the flavors of the different ingredients to blend together, which halacha calls beli’ah. Therefore, should one ingredient be non-kosher, the entire food will become non-kosher. However, there are halachic ramifications to the fact that these methods of food preparation are not considered “cooking.” Even though salting and pickling food make it edible, the food is not considered cooked.Therefore, germane to the laws of Shabbos, one will not be able to heat up smoked food, using methods permitted to warm food on Shabbos. For example, although it is permitted to heat food that is already cooked by placing it atop a pot which is, itself, on top of a fire or blech, one may not heat up deli this way on Shabbos, when it has been pickled, but not cooked, which is usually the case.

Several types of smoking

In contemporary use, the term “smoked” may refer to several different ways of preparing food, with variant halachic ramifications. Here are three methods:

Hot smoke

Frankfurters and many other sausages are “cooked” in hot smoke, in an appliance sometimes called a smoker. Rather than being cooked directly by the fire, or by water that is heated by a fire, these foods are cooked by hot smoke. This is also the usual way in which raw salmon is made into lox. The question we will be discussing in our article is whether this is halachically equivalent to cooking in water, oil or other liquid. There are many halachic ramifications to the question. Unless specified otherwise, our article is discussing this type of smoking, in which smoke is doing the actual cooking (see Perisha, Yoreh Deah 87:9).

Cured food

In this type of “smoking,” wood is burned inside a sealed room, usually called a “smokehouse.” The food to be preserved and processed is placed inside the smokehouse for several days, or perhaps even weeks, while the smoke, now cool, cures and provides the food with a smoky flavor. Since the food production in this instance takes place in room temperature smoke, this process should not be considered either “cooking” or beli’ah. However, there is one late authority who considers this method of producing food to be similar to cooking (Chadrei Deah, quoted by Badei Hashulchan, Biurim 87:6 s.v. Ha’me’ushan). For the rest of this article, I will not take this opinion under consideration, since it is not within mainstream accepted halacha.

Regarding the laws of Shabbos, food smoked this way is certainly considered to be uncooked.

Smoke flavored

A third method of smoking is when food is prepared by steaming, cooking or broiling, and a natural or artificial ingredient called smoke flavor is added to provide smoke taste. If the food was prepared by being cooked or broiled, it is considered cooked for halachic purposes. If the food was prepared by being “steamed,” a process similar to the first method of smoking mentioned above, the halachic issue is more complicated. The halachic question is whether cooking in steam and cooking in smoke are identical, or, perhaps, cooking in steam is like cooking in water. I will leave that aspect of this topic for a future article.

Smoking on Shabbos!

At this point, I will explain some of the halachic issues affected by the question as to whether smoking food is the same as cooking. One of the 39 melachos prohibited on Shabbos is mevasheil, cooking, or, in the words of the Mishnah (Shabbos 73a), ofeh, baking. This melacha involves preparing food with heat (Rambam, Hilchos Shabbos 9:1-5). One of the questions that the Gemara discusses is whether smoking food on Shabbos is considered a violation of the melacha of cooking on Shabbos min haTorah, and another issue is whether smoked food is considered cooked.

Here is one application of this issue: Once dry food has been completely cooked, such as baked or barbecued chicken or a kugel, there is no Torah violation in heating it on Shabbos. (There often may be rabbinic violations involved, but there are ways of warming cooked food on Shabbos that are permitted. We have discussed that topic in the past.) However, heating uncooked food on Shabbos usually involves a melacha min haTorah. The question we are raising is whether food that has been smoked, such as lox or hot dogs, is considered as cooked regarding the laws of warming food on Shabbos. If it is, then there are more options available to warm them on Shabbos.

Smoking meat and milk

A second area of halacha where this question – whether smoking constitutes cooking – is germane, is the prohibition of eating dairy and meat foods cooked together, basar becholov. Although we are prohibited from eating meat and milk together even when both are cold, or even from eating dairy after consuming meat, these prohibitions are only miderabbanan. The prohibition is violated min haTorah by cooking meat and dairy together or by eating meat and dairy that were previously cooked together. The question that we will tackle is whether smoking meat and dairy together is prohibited min haTorah or only miderabbanan.

There is a halachic difference that depends on whether preparing a meat and dairy mixture is prohibited miderabbanan or min haTorah. The prohibition against benefitting from meat and milk applies only when one violated the law min haTorah, but not when one violated it miderabbanan (Shulchan Aruch, Yoreh Deah 87:3 and commentaries). Therefore, if meat and dairy were mixed together when cold, there is no prohibition in getting benefit from the resultant product, even though it may not be eaten. For this reason, selling pet food does not violate the law of benefiting from basar becholov, even when it contains both meat and dairy products, since the two are not cooked together, but blended together at room temperature.

The question germane to our discussion is whether a Jew may benefit from a meat and dairy product that was smoked together. For example, if someone smoked a raw frankfurter together with cheese, is it prohibited min haTorah, and for this reason one may not have benefit from it min haTorah, or not?

Bishul akum

Here is another kashrus application in which it will make a difference whether smoking is considered cooking or not. Chazal prohibited eating food cooked by a non-Jew, even when all the ingredients are kosher, unless the food is edible raw or would not be served on a royal table. Is smoking considered “cooking” germane to this prohibition, or not? This means that, if a non-Jew smoked food that is inedible raw, is it prohibited because of bishul akum? A practical difference is whether a hechsher on hot dogs must make sure that a Jew smoked the frankfurters; another is whether the smoking of lox must be done by a Jew.  In both of these situations, the question is whether this food is considered cooked by a non-Jew, which might prohibit it as bishul akum, or whether it was prepared in a way that does not qualify as “cooking,” and therefore bishul akum is not a concern.

Eruv tavshillin

Here is yet another halachic application in which it will make a difference whether smoked food is considered “cooked” or not. Chazal prohibited cooking on Yom Tov for Shabbos, unless one prepares an eruv tavshillin, a cooked item designated before Yom Tov that will remain until the Shabbos preparations are completed, and that thereby permits cooking for Shabbos on Yom Tov that falls on Friday. If smoked food is considered cooked, then it is acceptable to use a food that was prepared by smoking, such as a frankfurter or lox, as an eruv tavshillin. If smoked food is not considered cooked, then it is not.

The Yerushalmi

Now that we understand the background, we can examine the Talmudic discussion that concerns smoked food. We will begin by quoting a passage of Talmud Yerushalmi (Nedorim 6:1): “The rabbis of Kisrin asked: What is the law of smoked food in regard to the prohibition of bishul akum? In regard to cooking on Shabbos? What is its law regarding mixing meat and milk together?” The passage of Yerushalmi then changes the subject, without ruling on the three questions raised.

The issue the Yerushalmi seems to be asking is whether cooking food in smoke is halachically equivalent to cooking in liquid. In each of these instances, a hot medium is used to prepare the food. The first question of the Yerushalmi is whether food smoked by a non-Jew is prohibited, or whether the proscription of bishul akum is limited to food cooked via fire or liquid. If cooking in smoke is halachically considered the same as cooking in water or oil, then lox or frankfurters that were smoked by a non-Jew are prohibited because of bishul akum. On the other hand, if smoking is not treated as cooking, then there is no halachic problem with eating lox or hot dogs in which the actual smoking was performed by a non-Jew, provided that the ingredients are all kosher.

The second question of the Yerushalmi can be explained as follows: If a Jewish person placed raw frankfurters or salmon into a smoker on Shabbos, and the frankfurters or lox thereby became edible on Shabbos, did the person desecrate a melacha on Shabbos? If he did, then there are halachic ramifications germane to a product that was smoked on Shabbos in violation of the law.

The third question of the Yerushalmi concerns the laws of cooking meat and milk together. If smoking is considered cooking, min haTorah, then smoking a cheese dog violates basar becholov min haTorah, and it is prohibited to have any benefit from it.

As I noted above, the Yerushalmi that we quoted does not mention a conclusion regarding these three questions. Based on these unresolved questions, the Rambam (Hilchos Ma’achalos Asuros 9:6) appears to conclude the following: when our issue is a halacha that is min haTorah, we rule stringently. However, when the issue is a rabbinic question, we will rule leniently and not consider this to be cooking.

As a result, it is certainly prohibited as a safek de’oraysa to smoke a cheese dog or to smoke food on Shabbos. It would be prohibited to have any benefit from a smoked cheese dog. However, someone who violated these prohibitions would not be punishable for his offense, even when such punishment was practiced and even had he fulfilled all the requirements to receive this punishment, because the Yerushalmi did not conclude definitively that it constitutes a violation. The Shulchan Aruch (Yoreh Deah 87:6) follows the same approach as the Rambam.

We will continue this topic at some point in the future.

Conclusion

In non-observant circles, a well-known non-Jewish criticism of Judaism is frequently leveled: “Does G-d care more about what goes into our mouths than he does about what comes out?” The criticism is, of course, in error, and its answer is that Hashem cares both about what goes in and what comes out, and it is the height of conceit for us to decide which is “more” important in His eyes. Being careful about what we eat and about what we say are both important steps in growing in our development as human beings.

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